UC-NRLF 


B    3    IID    321 


MlIE  ■  AEMY  BEG-ULATIONS 


AND 


EXECUTIVE  JffiGUUTlONS  IN  GENERi^l 


X^IEBBPt 


LIBRARY 

OF   THE 

University  of  California. 


Received 


LUAX^ 


Accession  hJo.  y^/  6  y  Z.    .    CLus  No. 


REMARKS 


The  Army  Regulations 


EXECUTIVE  REGriATIOXS  IN  GENERAL. 


G.  NORMAN  LIEBER, 

JUDGE-ADVOCATE  GENERAL, 
U.  S.  ARMY. 


WASHINGTON: 

Government  Printing  Office. 


7/4/z. 


WAR  DEPARTMENT. 

Document  No.  63. 

Office  of  the  Judge-Advocate  Genebal. 


TABLE  OF  CONTENTS. 


CHAPTER  I. 

Pago. 

Classification    and    Source   of  Authority    of   Army 
Regulations ^ 

CHAPTER  II. 
Executive  Regulations  in  General 3l 

CHAPTER  III.      ■' 
Approval  of  Regulations  by  Congress 51 

CHAPTER  IV. 
The  Different  Editions  of  Army  Regulations. 61 

CHAPTER  V. 

The   Interpretation    and    Construction    of   Regula- 
tions   85 


Appendix  A.— Letter  of  the  Secretary  of  War  with  regard 
to  General  Order  No.  32,  Adjutant-General's  Office,  1873-       103 

Appendix  B.— Extract  from  the  Judge- Advocate  General's 
remarks  on  revocable  licenses 131 

Appendix  C— Opinion  of  Hon.  J.  M.  Dickinson  with  refer- 
ence to  the  constitutionality  of  the  act  of  Congress  giving 
the  Secretary  of  "War  powers  in  regard  to  obstructions  to 
navigation 139 

Appendix  D.— Extract  from  the  Regulations  for  the  Rev- 
enue-Cutter Service 139 

(3) 


4 

Page. 

Appendix  E.— Explanation  of  General  Scott  with  reference 
to  the  Amiy  Regulations  of  1831 145 

Appendix  F. — Letter  of  Secretary  of  War  Belknap,  accom- 
panying proposed  regulations  of  1873 149 

Appendix  G. — Report  of  Military  Committee  of  the  House 
of  Representatives,  Forty-third  Congress,  first  session,  on 
"  Revised  Army  Regulations  " 151 

Appendix  H. — Letter  of  General  Schofield  in  regard  to  pro- 
posed regulations  of  1876 185 

Appendix  I. — Remarks  of  Secretary  of  War  McCrary  in  his 

annual  report  of  1877 187 


CHAPTER  L 


CLASSIFICATION  AND  SOURCE  OF  AUTHORITY  OF 
ARMY  REGULATIONS. 

The  words  regulate  and  regulation  are  used  in  several 
places  in  tlie  Constitution  of  the  United  States.    Thus, 
Congress  has  power  to  " regulate "  commerce,  to  "reg- 
ulate" the  value  of  money,  to  make  rules  for  the  gov- 
ernment and  "regulation"  of  the  land  and  naval  forces, 
to  make  "regulations"  with  regard  to  the  elections  of 
Senators  and  Representatives,  to  make  "regulations" 
with  reference  to  the  jurisdiction  of  the  Supreme  Court 
in  certain  cases,  and  to  make  needful  rules  and  "reg- 
ulations" respecting  the  territory  and  other  property 
of  the  United  States.     In  all  these  cases  regulation  is 

legislation. 

By  virtue  of  its  power  to  make  rules  and  regula- 
tions for  the  land  and  naval  forces,  Congress  covers  a 
laro-e  field  of  legislation  relating  to  the  administration 
of  military  aflPairs.     When  this  is  done,  there,  how- 
ever, remains  a  mass  of  matters  appertaining  to  the 
militarv  establishment,  which  it  is  necessary  to  '  'regu- 
late "    legislation  can  not  enter  into  all  the  details  of 
this  regulation,  and,  if  it  could,  it  would  not  be  desir- 
able, because  a  legislative  code,  controlling  the  whole 
subject  of  military  administration,  would  not  have 
the  necessary  elasticity.     The  Constitution  provides 
a  way  of  supplementing  this  power  of  Congress,  the 
President,  as  Executive  and  Commander-in-Chief  of 


(6) 


6 

the  Army,  having  the  power  to  make  regulations  for 
its  government.' 

The  regulations  for  the  transaction  of  the  public 
duties  and  business  relating  to  the  military  establish- 
ment, adopted  by  the  President  in  the  exercise  of  this 
power,  are  designated  as  the  Army  Regulations.  They 
may  be  divided  into  several  classes,  viz : 

1.  Those  which  have  received  the  sanction  of  Con- 
gress. These  cannot  be  altered,  nor  can  exceptions 
to  them  be  made,  by  the  executive  authority,  unless 
the  regulations  themselves  provide  for  it.  In  reality, 
the  approval  of  Congress  makes  them  legislative 
regulations,  and  they  might  therefore  be  more  strictly 
classified  with  other  statutory  regulations  with  refer- 
ence to  subjects  of  military  administration.  They 
are,  however,  included  under  the  general  head  of 
Army  Regulations,  as  approved  codes  of  executive 
regulations.  Examples  of  regulations  having  this 
sanction  are  given  post. 

2.  Those  that  are  made  pursuant  to,  or  in  execution 
of,  a  statute — meaning  by  the  latter  expression,  those 
that  are  supplemental  to  particular  statutes,  and,  in 


'  "Regulations  are  administrative  rules  or  directions  as  distin- 
guished from  enactments.  They  exist  in  all  the  Executive  De- 
partments and  are  of  very  material  service  in  the  efficient  admin- 
istration of  the  Government.  Army  regulations  are  authorita- 
tive directions  as  to  the  details  of  military  duty  and  discipline. 
The  aiithority  for  Army  regulations  is  to  be  f  ound'in  the  distinctive 
functions  of  the  President  as  Commander  in  Chief  and  as  Execu- 
tive. His  function  as  Commander  in  Chief  authorizes  him  to 
issue,  personally  or  through  his  military  subordinates,  such  or- 
ders and  directions  as  are  necessary  and  proper  to  insure  order 
and  discipline  in  the  Army.  His  function  as  Executive  empowers 
him,  personally  or  through  the  Secretary  of  War,  to  prescribe 
rules,  where  requisite,  for  the  due  execiition  of  the  statutes  re- 
lating to  the  military  establishment. "  (Winthrop's  Abridgment 
of  Military  Law,  p.  8. ) 


the  cabsence  of  sufficient  legislative  regulation,  pre- 
scribe means  for  carrying  them  out.     These,  if  it  be 
not  prohibited  by  the  statute,  may  be  modified  by  the 
executive  authority,'  but  until  this  is  done  they  are 
binding  as  well  on  the  authority  that  made  them  as 
on  others.     It  has  been  held  that  a  regulation  of  the 
Treasury  Department,  made  in  pursuance  of  an  act  of 
Congress,  "becomes  a  part  of  the  law,  and  of  as  bind- 
ing force  as  if  incorporated  in  the  body  of  the  act 
itself. '"    So  it  has  been  held  that  the  civil  service  rules, 
promulgated  under  the  Civil  Service  Act,  "became  a 
part  of  the  law,"  and  that  removal  from  a  position 
placed  under  the  act  and  the  rules  can  only  be  made 
agreeably  to  the  terms  and  provisions  of  both  the  act 
and  the  rules,  ="  and  an  Army  regulation  made  pursuant 

1  "The  power  to  establish  implies,  necessarily  the  power  to 
modify  or  ?epeal,  or  to  create  anew. "     (United  States  v.  Eliason, 

16  Pet,  302.)  „   .   ^  -,A1Q 

•2  United  States  v.  Barrows,  1  Abbott,  351 ;  34  Fed.  Cases,  1018. 
3  Bntler  v  White,  83  Fed.  Rep. ,  578.  See  also  United  States  v. 
Wade  ^^Fecl  Rep,  261;  Boody  r.  United  States  3  Fed.  Cases. 
860  United  States  r  Webster,  28 Fed.  Cases,  509,  A  len  t^.  Colby 
47  N  H  544  •  The  Thomas  Gibbons,  8  Cr. ,  421 ;  Parker  v  United 
States  IP  293  297;  United  States  r.  Freeman,  25  Fed  Cases, 
ini  Lockinston-s  Case,  Bright,  269 ;  Low  v.  Hanson,  72  Me  104 ; 
United  StaTeT'  Williams,  6  Mont.,  379;  .Cal-  ^^  United  S^aes, 
15'^  TT  S  211  221  Bnt  as  to  the  conclusion  m  Bntlei  r.  White 
irregard  to  removals  from  office  under  the  civil  service  act  and 

"Bl'acTJf"on|res;  o?  March  1,  1823,  it  was  prescribed,  "  That 

if  Sy  persons  shall  swear  or  affirm  falsely,  touching  the  expend^ 

tuie  of  public  money,  or  in  support  of  any  claim  against  the 

United  States,  he  or  she  shall,  ^^PO^^^^^^^^VSatfJlfe  lunreme 
for  willful  and  corrupt  per.iury.  It  was  held  by  the  Supieme 
Court  that  under  this  legislation,  the  Sef'etary  of  the  Tiejiry 
had  the  power  to  make  a  regulation  authorizing  ni^sticeh  ot  the 
peace  of  slates  to  administer  oaths  to  affidavits  m  support  of 
Ss,  and  that  perjnry  might  be  assigned  on  an  affidavit  so 
taken,  (United  States  r.  Bailey,  9  Pet.,  238).  And  see  uniteu 
States  V.  Breen,  40  Fed.  Rep.,  402. 


8 

to  a  provision  contained  in  an  act  of  Congress  is  of  the 
same  force.  Examples  of  regulations  of  this  class  are 
those  relating  to  the  examination  of  enlisted  men  for 
commissions,  under  the  act  of  Congress  of  Jnly  30, 
1892,  and  the  Executive  order  of  March  30,  1898,  pre- 
scribing limits  of  punishment. 

3.  Those  emanating  from,  and  depending  on,  the 

Such  regulations  must  of  course  be  consistent  with  the  law, 
as  is  pointed  out  in  the  follownng  extract  from  a  report  of  the 
Jiidge -Advocate  G-eneral's  Office,  dated  November  22,  1888. 

"Paragraph  2454,  Army  Regulations  of  1881,  was  first  promul- 
gated by  direction  of  the  Secretary  of  War  on  June  22,  1872,  in 
General  Orders  No.  51,  A.  Gr.  O.  These  orders  prescribed  rules 
for  the  execution  of  the  provisions  of  the  act  of  Congress  approved 
May  15,  1872  (17  Stat.,  116),  now  embraced  in  sections  1280- 
1284,  Revised  Statutes.  Although  this  statute  was  silent  as  to 
the  execution  of  the  details  of  its  provisions,  yet  as  the  execution 
thereof,  from  the  nature  of  the  enactment,  required  to  be  specifi- 
cally methodized,  the  authority  for  prescribing  rules  to  effec- 
tuate the  objects  of  the  law  resulted  by  legal  implication  in 
connection  with  the  constitiitional  duty  of  the  executive  depart- 
ment to  '  take  care  that  the  laws  be  faithfully  executed. '  (1  Win- 
throp,  19;  McCall's  Case,  2  Phila.,  269;  10  Wheat.,  42;  7  Pet.,  2; 
9  id.,  238;  1  Pet.,  C.  C,  471 ;  1  W.  &  M.,  164;  11  Mich.,  298;  16 
Wis.,  423  ;  5  Phila.,  287;  47  N.  H.,  544;  Cooley's  Principles  Con- 
stitutional Law,  44  ;  1  Opin.  Atty.  Gen.,  478  ;  2  id.,  225,  243-245, 
421 ;  4  id.,  225,  227;  6  id.,  365;  16  id.,  39.) 

"It  is  obvious  that  the  regulations  under  discussion  were 
made  in  aid  of  the  law  cited  and  therefore  belong  to  the  class 
of  regulations  termed  by  the  Court  of  Claims  in  its  opinion, 
heretofore  mentioned,  as  '  supplementary  to  the  statutes  which 
have  been  enacted  by  Congi-ess  in  reference  to  the  Army. '  But 
in  order  that  such  regulations  shall  have  the  force  of  law,  they 
must,  under  the  authorities  cited,  be  consistent  with  the  statute 
in  aid  of  which  they  were  made. 

' '  It  will  appear  from  the  report  of  this  office  of  October  9, 
1888,  that  ijaragraph  2454,  Army  Regulations  of  1881,  was  origi- 
nally issued  under  a  misapprehension  of  the  intent  and  effect  of 
the  provisions  of  the  act  of  Congress  approved  May  15,  1872 
(sec.  1280-1284,  Rev.  Stat.).  To  make  this  paragraph  consistent 
with  the  statute  a  project  for  an  amendment  was  submitted  and 
substantially  adopted  by  the  Secretary  of  War  by  the  publica- 
tion of  General  Orders  No.  95,  of  November  10,  1888,  amending 
Army  Regulation,  2454. " 

See  also  Dig.  Opin.  Judge-Advocate  General,  168. 


9 

constitutional  authority  of  the  President  as  Com- 
mander-in-Chief of  the  Army  and  as  Executive,  and 
not  made  in  supplement  to  particular  statutes.  These 
constitute  the  greater  part  of  the  Army  regulations. 
They  are  not  only  modified  at  will  by  the  President, 
but  exemptions  from  particular  regulations  are  given 
in  exceptional  cases ;  the  exercise  of  this  power  with 
reference  to  them  being  found  necessary.  "The  au- 
thority which  makes  them  (regulations)  can  modify 
or  suspend  them  as  to  any  case,  or  class  of  cases,  or 
generally."' 

1  5  Dec.  First  Comptroller,  29,  and  see  art.  1  of  Circ.  No.  4,  1897, 
A.  G.  O. ;  Circ.  No.  2, 1885;  United  States  v.  Eliason,  16  Pet,  302; 
Davis's  Military  Laws,  146,  and  Military  Law,  6;  3  Dec.  Comp. 
Treas.,  305;  Smith  v.  United  States,  24  Ct.  Cls.,  209;  Arthur  v. 
LTnited  States,  16  Ct.  Cls.,  422;  Opin.  Judge -Advocate  General, 
March  5,  1896,  concurred  in  by  the  War  Department  (2074). 

The  following  is  an  extract  from  the  opinion  last  cited : 

' '  Regulations  may  be  divided  into  different  classes  with  respect 
to  this  question.  There  are,  or  may  be,  those  which  have  re- 
ceived the  sanction  of  Congress,  and  it  is  evident  that  the  Secre- 
tary of  War  would  have  no  authority  to  make  an  exception  to 
one  of  these.  There  are  also  those  that  are  made  piirsuant  to 
and  in  aid  of  a  statute.  These  may  be  modified,  but,  until  this 
is  done,  are  binding  as  well  on  the  authority  that  made  them  as 
on  others.  (United  States  v.  Barrows,  1  Abbott,  351).  There  is 
also  a  large  body  of  other  regulations  emanating  from,  and  de- 
pending solely  on  the  authority  of  the  President  as  Commander 
in  Chief.  With  reference  to  such  regulations,  it  has,  I  believe, 
been  sometimes  claimed  that  the  same  rule  should  be  applied  that 
is  api)lied  to  the  regulations  made  piirsuant  to  statute.  But  this 
has  not  been  done  in  practice,  and  I  do  not  think  that  it  should  be 
done,  for  the  reason  that  it  would  seem  to  be  an  unnecessary, 
embarrassing,  and  perhaps  unconstitutional  limitation  of  the 
authority  of  the  President  as  Commander  in  Chief.  To  exempt 
from  compliance  ^vith  a  particular  regulation  in  an  exceptional 
case  would  seem  to  be  a  lawful  exercise  of  that  authority." 

In  United  States  v.  Burns,  12  Wall.,  24(5,  the  Supreme  Court 
held  with  reference  to  an  Army  regulation,  prohibiting  persons 
in  the  military  service  from  making  contracts  for  supplies,  etc. , 
with  other  persons  in  the  military  service,  that  the  regulation 
did  not  apply  to  contracts  on  behalf  of  the  United  States,  which 
required  for  their  validity  the  approval  of  the  Secretary  of  War ; 


10 

To  which  are  sometimes  added : 

4.  Departmental  regulations,  made  by  virtue  of  the 
authority  conferred  by  section  101,  Revised  Statutes, 
on  the  head  of  each  Department  ' '  to  prescribe  regula- 
tions not  inconsistent  with  law,  for  the  government  of 
his  Department,  the  conduct  of  its  officers  and  clerks, 
the  distribution  and  performance  of  its  business,  and 
the  custody,  use,  and  preservation  of  its  records,  pa- 
pers, and  property  apijertaining  thereto."  ' 

Mere  repetitions  of  legislative  enactments  are  not 
included  under  any  of  these  heads. 

A  long  continued  practice  has  been  held  equivalent 
to  a  specific  regulation." 

that  tliouf^h  contracts  of  that  character  are  usually  negotiated 
by  subordinate  officers  or  agents  of  the  Government,  they  are  in 
fact  and  in  law  the  acts  of  the  Secretary,  whose  sanction  is  essen- 
tial to  bind  the  United  States ;  and  that  the  Secretary,  though 
the  head  of  the  War  Department,  is  not  in  the  military  service 
in  the  sense  of  the  regxilation,  but,  on  the  contrary,  is  a  civil 
officer  with  civil  duties  to  perform,  as  much  as  the  head  of  any 
other  of  the  Executive  Departments.  This  decision  is  sometimes 
referred  to  as  sustaining  the  view  that  Army  regulations  are  not 
in  any  case  binding  on  the  authority  that  makes  them,  whereas 
all  that  was  held  is  that  the  regulation  in  question  was  not 
intended  to  restrain  the  Secretary  of  War.  (See  the  case  of 
Smith  V.  United  States,  34  Ct.  Cls.,  209.) 

'  Section  1059,  Revised  Statutes,  vests  the  Court  of  Claims  with 
jurisdiction  to  hear  and  determine  claims  founded  upon  any  reg- 
ulation of  an  Executive  Department,  which  the  court  has  con- 
strued as  meaning  any  regulation  within  the  lawful  discretion 
of  the  head  of  an  Executive  Department.     (20  Ct.  Cls.,  199.) 

See  also  act  of  March  3,  1SH7,  "to  provide  for  the  bringing  of 
suits  against  the  Government  of  the  United  States." 

■■^United  States  v.  Macdaniel,  7  Pet.,  1 ;  United  States  v.  Web- 
ster, 28  Fed.  Cases,  515;  3  Dec.  Comp.  Treas.,  316. 

See  also  Martin  v.  Mott,  12  W.  19,  and  United  States  v.  Bab- 
cock,  24  Fed.  Cases,  928. 

"A  regulation  is  a  rule.  It  may  be  written,  and  no  reason  is 
perceived  why  it  may  not  exist  in  parol  or  by  usage. "  (Decision 
First  Comptroller,  Vol.  V,  p.  311.)  The  "ciistom  of  war,"  that 
is  to  say,  the  custom  of  the  service,  is  recognized  l)y  the  eighty- 
fourth  Article  of  War  as  being  a  ijart  of  the  law  military. 


11 

As  to  the  subject-matter  of  regulations  for  the  gov- 
ernment of  the  Army,  no  distinct  line  can  be  drawn 


But  usage  can  not  be  relied  on  in  justification  of  an  act  forbidden 
by  express  law.  (Walker  r.  The  Transportation  Company,  3 
Wall..  150:  Clark's  Browaie  on  Usages  and  Customs,  p.  27,  note; 
27  Am.  and  Eng.  Enc.  of  Law,  798. )  A  noticeable  in.stance  of  the 
disregard  of  this  principle  is  to  be  found  in  a  work  on  ' '  The  Mili- 
tary Law  of  England,"  piiblished  in  London  in  1810,  in  which, 
after  stating  the  law  relating  to  duelling,  as  containeu  in  the 
Articles  of  War.  it  is  said  that  "there  are  cases  in  which,  not- 
withstanding the  exi:)licit  declarations  of  the  written  law.  the 
custom  i)f  the  service  would  seem  to  demand  a  reference  to  arms, " 
and,  accordingly,  "General  Rules  and  Instructions  for  Seconds 
in  Duels"  are  given. 

'  'A  usage  or  custom,  at  military  law.  must  consist  of  a  fixed 
and  uniform  practice  of  long  standing,  which  is  not  in  conflict 
with  exi.sting  statute  law  or  regulation.  A  custom  of  the  serAnce 
can  not  be  establi.shed  by  proof  of  isolated  or  occasional  instances, 
but  must  be  built  up  out  of  a  series  of  precedents.  It  must  also 
be  a  usage  of  the  Anny,  or  of  some  separate  and  distinct  branch 
of  the  military  establishment.  Moreover,  no  illegal  or  unauthor- 
ized practice,  however  frequent  or  long  continued,  can  make  a 
usage.""     (Winthrop"s  Abridgment  of  Military  Law,  p.  14.) 

In  connection  ^\'ith  the  above  classification  of  Armv  regula- 
tions, see  the  decision  of  the  Court  of  Claims  in  Maj.' William 
Smith"s  Case,  23  Ct.  Cls. ,  452.  in  which  the  court  said : 

'  ■  The  Con.stitution  provides,  in  Article  I,  section  8,  paragraph 
14,  that  Congress  shall  have  power  'to  make  rales  for  the  gov- 
ernment and  regulation  of  the  land  and  naval  forces. ' 

•  •  It  has  been  argued  here  and  elsewhere  that  this  pro%asion 
deprives  the  President  of  authority  to  make  such  rales  of  his  own 
motion,  or  even  when  previously  authorized  by  legislative  action, 
on  the  ground  that  the  power  is  exclusive  in  Congress  and  can 
not  be  delegated :  and  so  that  all  rules  for  the  government  and 
regulation  of  the  land  and  naval  forces  made  by  the  Executive 
are  void  and  of  no  effect  ^vithout  the  enactment  by  Congress  in 
the  form  of  approval  or  otherwise. 

•  •  Congress  has  established  rules  and  articles  for  the  govern- 
ment of  the  armies  of  the  L'nited  States,  commonlv  called  Arti- 
cles of  War'  (act  of  April  10,  1806,  chapter  20,  2  Stat.  L.,  359,  now 
Rev.  Stat.,  sec.  1342). 

' '  For  the  making  of  other  and  ordinary  regulations  Congress 
has  from  an  early  day  proceeded  upon  the  idea  that  the  power 
might  be  delegated  to  the  President,  and  has  passed  several  acts 
expre.ssly  confen-ing  such  authoritv  (act  of  March  3,  1.S13,  chap- 
ter 52,  section  5  (2  Stat.  L..  819):  act  of  April  24,  1816.  chapter 
69,  section  9  (3  Stat.  L.,  298) :  act  Julv  15,  1870,  chapter  294.  sec- 
tion 20  (16  Stat.  L.,  319) :  act  of  Marcli  1,  1875,  chapter  115  (Supp. 


12 

separating  tlie  President's  constitntional  power  to 
make  them  from  the  constitutional  power  of  Congress 

Rev.  Stat.,  149),  and  the  act  of  June  33,  1879,  chapter  35,  section 
2  (Supp.  Rev.  Stat.,  494),  under  vs^hich  the  edition  of  1881  was 
published. ) 

"Congi-ess  has  three  times  recognized  or  approved  existing 
regulations : 

onoN^-  ^^^^-  ^*^*  °^  ^P"^  ^"^-  ^^^^''  chapter  69,  section  9  (3  Stat.  L., 
398) ,  provided  that  '  the  regulations  in  force  before  the  reduction 
of  the  Army  be  recognized,  as  far  as  the  same  shall  be  found 
applicable  to  the  service,  subject,  however,  to  such  alterations 
as  the  Secretary  of  War  may  adopt,  with  the  approbation  of  the 
President. ' 

"3.  The  act  of  March  3,  1821,  chapter  13,  section  14  (3  Stat.  L., 
616),  enacted  'that  the  system  of  "general  regulations  for  the 
Army"  compiled  by  Major-General  Scott  shall  be,  and  the  same 
IS  herel^y,  approved  and  adopted  for  the  government  of  the  Anny 
of  the  United  States  and  of  the  militia,  when  in  the  service  of  the 
United  States. '  This  section  was  unconditionally  repealed  by  the 
act  of  May  7,  1822,  chapter  88  (3  Stat.L.,  686).  As  to  this  act 
Attorney  General  Wirt  advised  that,  notwithstanding  such  re- 
peal, the  regulations  having  received  the  sanction  of  the  Presi- 
dent, continued  in  force  by  the  authority  of  the  President  in  all 
cases  where  they  did  not  conflict  with  positive  legislation  (1 
Opin.,  549). 

"3.  The  act  of  July  28,  1866,  chapter  299,  section  37  (14  Stat 
L. ,  337,  338) ,  required  the  Secretary  of  War  to  prepare  a  code  of 
regulations  for  the  government  of  the  Army,  and  enacted  '  the 
existing  regulations  to  remain  in  force  until  Congress  shall  have 
acted  on  said  report. '    No  such  action  has  been  taken. 

"It  is  well  settled  that  Army  regulations  when  directly  ap- 
proved by  Congress  have  the  absolute  force  of  law  equally  with 
other  legislative  acts  until  repealed  by  the  same  power.  Con- 
gress so  treated  them  when  it  passed  the  act  of  June  8, 1873 
chapter  348  (17  Stat.  L.,  337),  providing  that  the  fifth  section  of 
the  act  of  May  8,  1872  (17  Stat.  L.,  83),  should  not  be  held  to 
repeal  that  part  of  paragraph  1030  of  the  Revised  Army  Regula- 
tions of  1863  with  which  it  appeared  to  be  in  conflict,  thus  recog- 
nizing the  regulations  approved  by  Congress  in  that  year  as 
having  the  same  force  as  Congressional  enactments. 

"On  the  other  hand,  it  is  just  as  well  .settled  that  regulations 
not  so  approved  have  the  force  of  law  only  when  founded  on  the 
President's  constitutional  powers  as  Commander  in  Chief  of  the 
Army,  or  are  'consistent  with  and  supplementary  to  the  statutes 
which  have  been  enacted  by  Congress  in  reference  to  the  Army  ' 
(Symond's  Case,  120  U.S.,  46,  affirming  21  Ct.  Cls.,  151;  Reed's 
Case,  100  U.  S.,  32;  Smith  t>.  Whitney,  116  id.,  180;  United  States 
V.  Whitney,  120  id.,  47;  Wayman  v.  Southard,  10  Wheat.,  43; 


13 

"to  make  rules  for  the  government  and  regulation" 
of  the  land  forces.     Regulations  are,  when  they  relate 

United  States  r.Eliason,  16  Pet.,  291;  United  States  v.  Freeman, 
3  How.,  556;  Kurtz  r.  Moffitt,  115  U.  S.,  508;  United  States  v. 
Webster,  3  Ware,  66;  United  States  v.  Maurice,  2  Brock,  108; 
Ferreu's  Case,  8  Benedict,  447 ;  Gates  v.  Fletcher,  1  Minn. ,  204 ; 
1  Opin.  Atty.  Gen.,  469,  547;  2  id.,  225;  8  id.,  85;  6  id.,  10,  215, 
365;  10  id.,  415;  16icZ.,  38.) 

"Whether  a  regiilation,  the  validity  of  which  is  drawn  in 
question,  is  within  the  constitutional  power  of  the  President  to 
proniiilgate,  or  whether  it  has  been  approved  by  Congress,  or 
whether  it  '  is  consistent  with  and  supplementary  to  the  statutes,' 
are  judicial  questions  not  always  free  from  difficulties  of  deter- 
mination. 

"In  the  light  of  these  views  and  the  adjudicated  cases  we  shall 
examine  the  existing  regulations. 

"The  present  regulations  are  contained  in  the  edition  of  1881, 
published  under  authority  of  the  act  of  March  1,  1875,  chapter 
115  (Supp.  Rev.  Stat. ,  149) ,  which  directs  the  President  '  to  make 
and  publish  regulations  for  the  govermnent  of  the  Army  in  ac- 
cordance with  exi.sting  laws,'  and  under  the  act  of  June  28,  1879, 
chapter  85,  section  2  (Supp.  Rev.  Stat.,  494),  which  further  directs 
the  President  to  ■  cause  all  the  regulations  of  the  Army  and  gen- 
eral orders  now  in  force  to  be  codified  and  published  to  the  Anny , ' 
and  provides  for  the  exi:)enses  of  the  work. 

' '  As  promulgated  in  this  edition  they  contain  orders  and  regu- 
lations of  four  different  classes  intermingled.  At  the  end  of  each 
the  earlier  authority  for  it  is  specified  by  a  note  in  brackets. 

"1.  General  orders  which  he  (the  President)  has  a  right  to 
issue  under  his  constitutional  prerogative  of  '  Commander  in 
Chief  of  the  Army  and  Navy  of  the  United  States.'  (Constitu- 
tion, Art.  II,  sec.  2,  par.  1.) 

"2.  Departmental  regulations,  under  section  161,  Revised 
Statutes,  authorizing  the  head  of  each  Department  to  '  prescribe 
regulations,  not  inconsistent  with  law,  for  the  govenmient  of  his 
Department,  the  conduct  of  officers  and  clerks,  the  distribution 
and  performance  of  its  business,  and  the  custody,  iise,  and  preser- 
vation of  its  records,  papers,  and  property  appertaining  thereto. ' 

' '  3.  Regiilations  not  approved  by  Congress,  biit  made  by  the 
President  in  the  exercise  of  legislative  authority  conferred  by  the 
acts  above  cited. 

"4.  Regulations  expressly  approved  by  Congress." 

The  executive  regulations  of  the  British  military  administra- 
tion consist,  principally,  of  the  Rules  of  Procedure,  the  Queen's 
Regulations,  Royal  Warrants,  and  Orders  in  Coimcil.  The  Rules 
of  Procedure  are  authorized  by  the  Anny  Act,  and  prescribe  the 
regulations  for  the  fonnatiou  of  military  courts,  the  trial  of 


14 

to  subjects  witliiu  the  constitutional  jurisdiction  of 
Congress,  unquestionably  of  a  legislative  character, 

offenders,  and  the  execution  of  sentences;  the  Queen's  Regula- 
tions relate  to  the  interior  economy  of  cortjs,  the  maintenance  of 
discipline,  and  the  powers  and  duties  of  commanding  officers,  and 
supplement  the  Army  Act  as  to  offences  against  enlistment  and 
the  disposal  of  prisoners :  Royal  Warrants  prescribe  the  perma 
nent  regiilations  as  to  the  government,  discipline,  pay.  promotion, 
and  conditions  of  ser^-ice ;  and  Orders  in  Council  are  regulations 
made  by  the  Crown  with  the  advice  of  the  Privy  Council,  in 
regard  to  matters  of  great  importance,  such  as  the  duties  of  the 
military  when  on  board  public  ships,  the  duties  of  the  office  of 
commander-in-chief  and  other  great  military  offices,  etc.  Royal 
Wan-ants.  General  Orders  (affecting  duty,  discipline,  and  general 
efficiency),  and  amendments  of  the  Queen's  Regulations,  are  pub- 
lished in  Army  Orders.  Besides  the  above  there  are  separate 
regulations  for  the  Militia.  Yeomanry,  and  Volunteer  Forces. 
(Pratt's  Military  Law.  London,  1S9'2:  Gunter's  Outlines  of  Mili- 
tary Law,  is9r.) 

L'ntil  toward  the  close  of  the  last  century  there  appears  to  have 
been  no  authorized  system  of  general  army  regulations  in  exi.st- 
ence  in  England,  each  colonel  having  his  own  standing  orders  for 
the  discipline  and  exercise  of  the  regiment,  so  that  "•  there  was 
not  any  standard  of  uniformity  or  of  efficiency  by  which  progress 
in  the  military  art  could  be  tested."  (Clode's  Militarv and  Mar- 
tial Law,  2d  ed.,  p.  55.)  In  1788  "A  Collection  of  Regulations 
and  Orders  "  was  issued,  and  this  seems  to  have  been  the  first 
authoritative  issiie  of  such  a  system.  The  war  office  regulations 
were  collected  and  issiied  in  1807,  and  the  "  General  Regulations 
and  Orders  for  the  Anny,  Adjutant  General's  Office,  Horse 
Guards,"  in  1811.  A  collection  of  army  regulations  by  Thomas 
Simes  was  published  in  1772.  under  the  "title,  •'The' Military 
Guide  for  Young  Officers."  but  this  publication  had  no  official 
sanction. 

By  the  term  "system  of  army  regulations  "  is  meant  an  author- 
ized publication,  such  as  our  Amiy  Regulations,  consisting  of 
general  rules,  made  by  the  executive  authority,  for  the  govera- 
ment,  interior  economy,  and  instruction  of  tlie  army,  and  the 
administration  of  its  affairs.  The  most  noted  executive  regula- 
tions of  the  British  military  service,  which,  ^^^thin  a  less  compre- 
hensive, but  most  important  field,  were  indeed  a  very  complete 
system,  were  the  Articles  of  War,  which,  before  the  enactment 
of  the  ai-niy  discipline  act  of  1879,  constituted,  together  with  the 
mutiny  act,  the  code  of  discipline  by  which  the  British  army  was 
governed.  The  sovereign  still  has  (under  the  Army  Act)  power 
to  make  Articles  of  War,  but,  owing  to  the  elaborateness  of  the 
statutory  code,  it  is  regarded  as  improbable  that  the  exercise  of 
this  power,  for  the  purpose  of  prescribing  the  punishments  for 


15 

aud  if  it  -were  practicable  for  Congress  completely  to 
regulate  the  methods  of  military  admiuistratiou,  it 
might,    under   the   Constitntion,    do   so.     But    it    is 

militarj-  offences,  will  ever  again  be  necessary.  For  a  short, 
but  very  good,  sketch  of  the  history  of  this  law-making  by  pre- 
rogative and  by  executive  regulation  authorized  by  statute,  see 
Encyclopedia  Britanuica.  title  "Military  Law."  In  1686  a  work 
entitled  "An  Abridgment  of  the  English  Military  Discipline  ' 
was  published.  It  consisted  priucijially  of  drill  regulations,  but 
also  related  to  encamping,  garrisons,  g-nards.  and  "  •  councels  of 
war  or  courts-martial.  '  Some  interesting  regulations  of  the  time 
of  Queen  Anne,  recently  discovered  in  the  record  office  of  the 
British  Museiim.  are  pubKshed  in  the  Joiuiial  of  the  Military 
Sers"ice  Institution  for  Xovember.  1S97. 

The  Rules  of  Procedure  are  authorized  by  the  Army  Act.  in  the 
following  teiTus ; 

■'1.  Subject  to  the  provisions  of  this  act  Her  Majesty  may.  by 
rules  to  be  signified  under  the  hand  of  a  secretary  of  state,  from 
time  to  time  make,  and  when  made  rei.>eal.  alter,  or  add  to.  pro- 
visions in  respect  of  the  following  matters  or  any  of  them :  that 
is  to  say, 

(a)  The  assembly  and  procedure  of  courts  of  inquiry; 

(6)  The  convening  and  constituting  of  courts-martial: 

(e)  The  adjourament.  dissolution,  and  sittings  of  courts- 
martial  : 

(d)  The  procedure  to  be  observeii  in  trials  by  coiut-martial : 

(e)  The  confirmation  and  revision  of  the  findings  and  sentences 
of  courts-martial ;  and  enabling  the  authority  having  power  under 
section  o7  of  this  act  to  commute  sentences  to  substitute  a  valid 
sentence  for  an  invalid  sentence  of  a  court-martial : 

(/)  The  carrying  into  effect  sentences  of  courts-martial: 

(gj  The  forms  of  orders  to  be  made  under  the  jirovisions  of  this 
act  relating  to  cotirts-maitial.  i>enal  servitude,  or  imprisoiunent : 

(/i)  Any  matter  in  this  act  directed  to  be  prescribed: 

( 0  Any  other  matter  or  thing  ex^iedient  or  necessary  for  the 
purpose  of  carrj-ing  this  act  into  execution  so  far  as  relates  to  the 
investigation,  trial,  and  punishment  of  offenses  triable  or  pun- 
ishable by  military  law : 

■ '  2.  Provided  always,  that  no  such  rules  shall  contain  anything 
contrary  to  or  inconsistent  with  the  provisions  of  this  act." 

'•3.  All  rules  made  in  pxirsiiance  of  this  section  shall  be  jndi- 
ciaDy  noticed. 

"4.  All  rules  made  in  pursuance  of  this  .-section  shall  belaid 
before  Parliament  as  soon  as  practicable  after  they  are  made,  if 
Parliament  be  then  sitting,  and  if  Parliament  be  not  then  sitting, 
as  soon  as  practicable  after  the  beginning  of  the  then  next  session 
of  Parliament. "" 


16 

entirely  impracticable,  and  therefore  it  is  in  a  great 
measure  left  to  the  President  to  do  it.  So  far  as  Con- 
gress chooses  to  exercise  its  jurisdiction  in  this  respect 
it  occupies  the  field,  and  the  President  can  not  encroach 
on  it. '  But  when  it  does  not  see  fit  to  do  so,  the  Presi- 
dent's power  is  of  necessity  called  into  action.  It  is, 
indeed,  of  the  commonest  occurrence  for  Congress  to 
regulate  a  subject  in  i^art  and  for  the  Executive  to 
regulate  some  remaining  part,  and  this  without  any 
pretense  of  statutory  authority,  but  upon  the  broad 
basis  of  constitutional  power.  We  thus  have  a  legis- 
lative jurisdiction  and,  subject  to  it,  an  executive 
jurisdiction  extending  over  the  same  matter. "  It  could 
not  be  otherwise.  Congress  can  not  regulate  all  the 
details  for  the  execution  of  all  the  laws,  and  the 
authority  charged  with  their  execution  must  therefore 
come  to  its  aid.^ 

'  2  Opin.  Atty.  Gen.,  231 ;  6  id.,  10,  215. 

''  The  Wai'  Department  has  recognized  this  by  its  api)roval  of 
the  following  views ;  ' '  The  issne  of  duplicate  discharges,  or  cer- 
tificates in  lieu  of  lost  discharges,  is  a  matter  over  which  both 
Congress  and  the  President  have  control,  the  former  by  virtue 
of  the  power  '  to  make  rules  for  the  government  and  regulation 
of  the  land  and  naval  forces,'  and  the  latter  by  virtue  of  his 
power  as  Executive  and  Commander  in  Chief.  The  power  of 
Congress  is,  however,  the  superior  power,  and  therefore  nothing 
in  conflict  Avith  any  regulation  on  the  subject  made  by  Congress 
can  legally  be  prescribed  by  the  President,  but  the  fact  that  Con- 
gress has  made  a  regulation  partly  covering  the  subject  does  not 
take  away  from  the  President  his  power  to  make  a  regulation 
relating  to  the  part  not  covered." 

"Winthrop's  Military  Law,  p.  20,  note: 

"If  it  is  difficult, "  says  Judge  Cooley,  ' '  to  point  out  the  precise 
boundary  which  separates  legislative  from  judicial  duties,  it  is 
still  more  difficult  to  discriminate,  in  particular  cases,  between 
what  is  properly  legislative  and  what  is  properly  executive  duty. 
The  authority  that  makes  the  laws  has  large  discretion  in  deter- 
mining the  means  through  which  they  shall  be  executed ;  and 
the  perfonaiance  of  many  diities  which  they  may  provide  for  by 
law  they  may  refer  either  to  the  chief  executive  of  the  State,  or, 


ir 

St),  also,  as  between  the  legislative  and  judicial 
powers,  Congress  may  regula,te  the  procedure  of  the 
Federal  courts,  but  in  so  far  as  it  does  not  do  it  the 
courts  may  prescribe  their  own  regulations.  And 
this  is  in  fact  the  existing  condition.  Congress  has 
exercised  the  power  in  i^art,  leaving  it  to  the  courts 
to  regulate  what  it  has  not  provided  for.  Courts  can 
not  exercise  their  jurisdiction  without  rules  of  proce- 
dure, and  necessarily  have  the  original  power  of 
adopting  their  own  when  the  legislature  does  not  pre- 
scribe them;  just  as  the  President  can  not  exercise 

at  their  option,  to  any  other  executive  or  ministerial  officer,  or 
even  to  a  person  specially  named  for  the  duty.  What  can  be 
definitely  said  on  this  subject  is  this :  That  such  powers  as  are 
specially  conferred  by  the  constitution  upon  the  governor,  or  upon 
any  other  specified  officer,  the  legislature  can  not  reqiiire  or 
authorize  to  be  performed  by  any  other  officer  or  authority ;  and 
from  those  duties  which  the  constitution  reiiuires  of  him  he  can 
not  be  excused  by  law.  But  other  powers  or  duties  the  executive 
can  not  exercise  or  assume  except  by  legislative  authority,  and 
the  power  which  in  its  discretion  it  confers  it  may  also  in  its  dis- 
cretion withhold,  or  confide  to  other  hands.  Whether  in  those 
cases  where  power  is  given  by  the  constitution  to  the  governor, 
the  legislature  have  the  same  authority  to  make  rules  for  the 
exercise  of  the  power  that  they  have  to  make  rules  to  govern  the 
proceedings  in  the  courts,  may  perhaps  be  a  question.  It  would 
seem  that  this  must  depend  generally  upon  the  nature  of  the 
power,  and  upon  the  qiiestion  whether  the  constitution,  in  con- 
ferring it.  has  furnished  a  sufficient  rule  for  its  exercise.  Where 
complete  power  to  pardon  is  conferred  iii)on  the  executive,  it  may 
be  doubted  if  the  legislature  can  impose  restrictions  under  the 
name  of  rules  or  regulations;  but  where  the  governor  is  made 
commander  in  chief  of  the  military  forces  of  the  State,  it  is 
obvious  that  his  authority  must  be  exercised  under  such  proper 
iTiles  as  the  legislature  may  prescribe,  because  the  military  forces 
are  themselves  under  the  control  of  the  legislature,  and  military 
law  is  prescribed  by  that  department.  There  would  be  this  clear 
limitation  upon  the  power  of  the  legislature  to  prescribe  riiles 
for  the  executive  department;  that  they  must  not  be  such  as, 
under  pretense  of  regulation,  divest  the  executive  of.  or  preclude 
his  exercising,  any  of  his  constitutional  prerogatives  or  powers. 
Those  matters  which  the  constitution  specifically  confides  to  him 
the  legislature  can  not  directly  or  indirectly  take  from  his  con- 
trol."     ( Cooley's  Constitutional  Limitations,  p.  138.) 

13190 — 2 


18 

liis  power  as  commander-in-cliief  witliout  the  power 
to  make  orders  for  the  regulation  of  the  Army.  In 
fact,  each  branch  of  the  Government — the  legislative,  • 
executive,  and  judicial — has  the  original  power  of 
making  regulations  for  the  transaction  of  its  busi- 
ness— most  manifestl}^  so  when  the  business  is  of 
direct  constitutional  origin — but  the  legislative  has 
sometimes  a  jurisdiction  over  the  regulations  of  the 
other  branches,  and  when  this  happens  its  jurisdic- 
tion is  superior.' 

In  speaking  of  the  power  of  Congress  over  the  ad- 
ministration of  the  affairs  of  the  Army,  it  is,  of  course, 
not  intended  to  include  what  would  properly  come 
under  the  head  of  the  direction  of  military  move- 
ments." This  belongs  to  command,  and  neither  the 
power  of  Congress  to  raise  and  support  armies,  nor 
the  power  to  make  rules  for  the  government  and  reg- 
ulation of  the  land  and  naval  forces,  nor  the  power  to 
declare  war,  gives  it  the  command  of  the  Army.  Here 
the  constitutional  power  of  the  President  as  com- 
mander-in-chief is  exclusive. 

When  Congress  fails  to  make  regulations  with  refer- 
ence to  a  matter  of  military  administration,  but  either 
expressly  or  silently  leaves  it  to  the  President  to  do  it, 
it  does  not  delegate  its  own  legislative  power  to  him, 
because  that  would  be  unconstitutional, '  but  expressly 

'  Under  the  Constitution,  each  house  of  Congress  determines 
its  own  rules  of  proceedings. 

''Fleming  v.  Page,  9  How.,  615. 

nn  McCall's  Case  (2  Philad.,  269), the  court  said:  "Of  course 
Congress  can  not  constitutionally  delegate  to  the  President  legis- 
lative powers ;  but  it  may,  in  conferring  powers  constitutionally 
exercisable  by  him,  prescribe,  or  omit  prescribing,  special  rules 
of  their  administration,  or  may  specially  authorize  him  to  make 
the  rules.     When  Congress  neither  prescribes  them,  nor  expressly 


19 

or  silently  gives  liim  the  opportunity  to  call  his  execu- 
tive power  into  play.  It  is  perhaps  not  easy  to  explai  n 
why,  if  regulations  may,  under  the  Constitution,  be 
made  both  by  the  legislative  and  executive  branches, 
one  should  have  precedence  over  the  other ;  but  it  is  to 
be  noticed  that  the  power  of  Congress  is  the  express  one 
"to  make  rules  for  the  government  and  regulation  of 
the  land  and  naval  forces,"  whereas  the  power  of  the 
President  is  a  construction  of  his  position  as  Executive 
and  Commander-in-Chief.  The  legislative  power,  by 
the  words  quoted,  covers  the  whole  field  of  military 
administration,  but  it  is  not  always  certain  how  far 
the  executive  power  may  go.  It  is  not  as  well  defined 
as  the  legislative  power,  but  it  is  undoubtedly  lim- 
ited to  so  much  of  the  subject  as  is  not  already  con- 

aiTthorizes  him  to  make  them,  he  has  the  authority,  inherent  in 
the  powers  conferred,  of  making  regulations  necessarily  incidental 
to  their  exercise,  and  of  choosing  between  legitimate  alternative 
modes  of  their  exercise.  Whether  his  authority  extends  further, 
and  enables  him,  without  express  authority  from  Congress,  to 
make  regulations  which,  though  incidental,  are  not  necessarily 
so,  is  a  different  question.  When,  however.  Congress,  in  confer- 
ring a  power  which  it  may  constitutionally  vest  in  him,  not  only 
omits  to  prescribe  regulations  of  its  exercise,  but,  as  in  the  pres- 
ent case,  expressly  authorizes  him  to  make  them,  he  may.  within 
the  limits  of ,  and  consistently  with,  the  legislative  power  declared, 
make  any  such  regulations  incidental,  though  not  necessarily  so, 
to  the  power  conferred,  as  Congress  might  have  specially  pre- 
scribed." 

"When  statutes  confer  powers,  impose  duties,  and  provide  for 
the  accomplishment  of  various  objects,  they  are  necessarily 
couched  in  general  terms,  but  they  carry  with  them,  by  impli- 
cation, all  the  powers,  duties,  and  exemptions  necessary  to  accom- 
plish the  objects  thereby  sought  to  be  attained. "  (In  re  Neagle, 
39  Fed. Rep., 834.) 

' '  The  difference  between  the  departments  undoubtedly  is  that 
the  legislature  makes,  the  executive  executes,  and  the  judiciary 
construes  the  law ;  but  the  maker  of  the  law  may  commit  some- 
thing to  the  discretion  of  the  other  departments,  and  the  precise 
boimdary  of  this  power  is  a  subject  of  delicate  and  difficult  in- 
(liiiry,  into  which  a  court  will  not  enter  unnecessarily."  (Way- 
man  u.  Southai-d,  10  W. ,  46  (Marshall,  C.J.).) 


20 

trolled  by  the  latter. '  The  jurisdiction  of  the  executive 
power  is  not,  however,  within  this  limit  coextensive 
with  that  of  the  legislative  power,  because  the  legis- 
lative branch  of  the  Government  has  a  constitutional 
field  of  operation  peculiar  to  itself,  and  yet  there  are 
army  regulations  which  seem  to  be  of  a  legislative 
character.  It  is  because  of  this  that  difficulty  some- 
times occurs — a  difficulty  which  has  in  the  past  quite 
often  taken  the  form  of  a  difference  of  views  between 
the  War  Department  and  the  accounting  officers  of  the 
Treasury. 

^  See  opinion  of  Attorney  General  Wirt,  1  Opin. ,  549;  of  At- 
torney General  Berrien,  2  Opin.,  22.'),  and  of  Attorney  General 
Gushing,  6  Opin.,  10,  15.  "The  authority  of  the  Secretary 
to  issue  orders,  regulations,  and  instructions,  \s"ith  the  ap- 
proval of  the  President,  in  reference  to  matters  connected  with 
the  naval  establishment,  is  subject  to  the  condition,  necessarily 
implied,  that  they  must  be  consistent  with  the  statutes  w^hich 
have  been  enacted  by  Congress  in  reference  to  the  Navy.  He 
may,  with  the  approval  of  the  Pi-esident,  establish  regulations 
in  execution  of,  or  supplementary  to,  but  not  in  conflict  with, 
the  statutes  defining  his  powers  or  conferring  rights  upon  others. 
The  contrary  has  never  been  held  by  this  court.  What  we  now 
say  is  entirely  consistent  with  Gratiot  v.  United  States,  4  How., 
80,  and  Ex  imrte  Reed,  100  U.  S.,  13,  upon  which  the  Government 
relies.  Referring  in  the  first  case  to  certain  amiy  regulations, 
and  in  the  other  to  certain  navy  regiilations,  which  had  been 
approved  by  Congress,  the  court  observed  that  they  had  the 
force  of  law.  See  also  Smith  r.  Whitney,  116  U.  S.,  181.  In 
neither  case,  however,  was  it  held  that  such  regulations,  when 
in  conflict  with  the  acts  of  Congi'ess,  could  be  upheld."  (United 
States  r.  Symonds,  120  U.  S.,  46-49.)  And  see  Winthrop's  Mili- 
tary Law,  pp.  29,  30,  and  note;  and  Dig.  Opin.  J,  A.  G.,  p.  168, 
§6. 


CHAPTER  11. 


EXECUTIVE  REGULATIONS  IN  GENERAL. 

Before  further  considering  the  regulations  rehating  to 
one  branch— the  military  branch— of  the  public  service, 
it  will  perhaps  not  be  uninstructive  briefly  to  examine 
the  subject  of  executive  orders  and  regulations  in  gen- 
eral.'   There  is  an  important  distinction  which  should 
be  kept  in  mind  in  this  connection,  namely,  the  distinc- 
tion between  offices  created  by  statute  and  those  created 
by  the  Constitution.     As  to  the  former,  the  extent  of 
their  authority  and  the  manner  of  its  exercise  are  sub- 
ject to  the  control  of  the  legislative  branch ;  but  as  to 
an  office  created  by  the  Constitution,  and  whose  gen- 
eral powers  are  named  in  it,  and  which  is  not  by  the 
Constitution  made  dependent  on  legislation  for  its 
jurisdiction,  its  authority  can  not,  as  to  these  constitu- 
tional powers,  be  thus  controlled,  except  in  so  far  as 
the  legislative  branch  may  refuse  to  vote  the  means  or 
furnish  the  opportunity  necessary  for  their  exercise, 
or  unless  the  Constitution  itself  vests  the  legislative 
branch  with  a  superior   authority  as  to  some  sub- 
ject-matter over  which  both  it  and  the  executive  or 
judicial  branch  have  jurisdiction.     When  Congress, 
by  its  exercise  of  the  legislative  power,  creates  new 
subjects  of  political  action,  it  may,  for  the  execution 
of  the  laws  relating  to  them,  vest  the  President  with 

'  See  article  on  'Executive  Regulations"  in  tlie  American  Law 
Review,  November-December,  1897. 


(21) 


22 

new  powers ;  but  where  the  President  is  vested  with  a 
distinct  power  by  the  Constitution,  Congress  can  not 
control  it  otherwise  than  as  indicated/ 

In  the  Neagle  case  the  United  States  Circuit  Court 
(39  Fed.  Rep.,  833)  said:  "The  power  and  duty  im- 
posed on  the  President  to  'take  care  that  the  laws  are 
faithfully  executed,'  necessarily  carries  with  it  all 
power  and  authority  necessary  to  accomplish  the 
object  sought  to  be  attained."  And  on  the  appeal  of 
this  case  the  Supreme  Court  (135  U.  S.,  63)  said :  "The 
Constitution,  section  3,  Article  II,  declares  that  the 
President  'shall  take  care  that  the  laws  be  faithfully 
executed,'  and  he  is  provided  with  the  means  of  ful- 
filling this  obligation  by  his  authority  to  commission 
all  the  officers  of  the  United  States,  and,  by  and  with 
the  advice  and  consent  of  the  Senate,  to  appoint  the 

' ' '  The  theory  of  the  Constitution  undoubtedly  is,  that  the 
great  powers  of  the  Government  are  divided  into  separate  depart- 
ments ;  and  so  far  as  these  powers  are  derived  from  the  Consti- 
tution, the  departments  may  be  regarded  as  independent  of  each 
other.  But  beyond  that,  all  are  subject  to  regiilations  by  law, 
touching  the  discharge  of  the  duties  required  to  be  performed. 

' '  The  executive  power  is  vested  in  a  President ;  and  as  far  as 
his  powers  are  derived  from  the  Constitution,  he  is  beyond  the 
reach  of  any  other  department,  except  in  the  mode  prescribed  by 
the  Constitution  through  the  impeaching  power.  But  it  by  no 
means  follows,  that  every  officer  in  every  branch  of  that  depart- 
ment is  under  the  exclusive  direction  of  the  President.  Such  a 
principle,  we  apprehend,  is  not,  and  certainly  can  not  be  claimed 
by  the  President. 

"There  are  certain  political  duties  imposed  upon  many  officers 
in  the  executive  department,  the  discharge  of  which  is  under  the 
direction  of  the  President.  But  it  would  be  an  alarming  doc- 
trine, that  Congress  can  not  impose  upon  any  executive  officer 
any  duty  they  may  think  proper,  which  is  not  repugnant  to  any 
rights  secured  and  protected  by  the  Constitution ;  and  in  such 
cases,  the  duty  and  responsibility  grow  out  of  and  are  subject  to 
the  control  of  the  law,  and  not  to  the  direction  of  the  President. 
And  this  is  emphatically  the  case,  where  the  duty  enjoined  is  of 
a  mere  ministerial  character."  (Kendall  v.  United  States,  12 
Pet.,  010.) 


23 

most  important  of  tliem  and  to  fill  vacancies.  He  is 
declared  to  be  commander-in-cliief  of  the  army  and 
navy  of  the  United  States.  The  duties  which  are  thus 
imposed  upon  him  he  is  further  enabled  to  perform  by 
the  recognition  in  the  Constitution,  and  the  creation 
by  acts  of  Congress,  of  executive  departments,  which 
have  varied  in  number  from  four  or  five  to  seven  or 
eight,  the  heads  of  which  are  familiarly  called  cabi- 
net ministers.  These  aid  him  in  the  performance  of 
the  great  duties  of  his  office,  and  represent  him  in  a 
thousand  acts  to  which  it  can  hardly  be  supposed  his 
personal  attention  is  called,  and  thus  he  is  enabled  to 
fulfill  the  duty  of  his  great  department,  expressed  in 
tlie  phrase  that  '  he  shall  take  care  that  the  laws  be 
faithfully  executed.' 

"  Is  this  duty  limited  to  the  enforcement  of  acts  of 
Congress  or  of  treaties  of  the  United  States  according 
to  their  express  terms,  or  does  it  include  the  rights, 
duties,  and  obligations  growing  out  of  the  Constitu- 
tion itself,  our  international  relations,  and  all  the 
protection  implied  by  the  nature  of  the  Government 
under  the  Constitution?" 

And  the  court,  Mr.  Justice  Miller  delivering  the 
opinion,  then  give  a  number  of  examples  of  proper 
occasions  for  the  exercise  of  this  executive  power,  and 
conclude  that,  while  there  is  no  express  statute  author- 
izing the  appointment  of  a  deputy  marshal,  or  any 
other  officer  to  attend  a  judge  of  the  Supreme  Court 
when  traveling  in  his  circuit,  and  to  protect  him 
against  assaults  or  other  injury,  the  general  obligation 
imposed  upon  the  President  of  the  United  States  by  the 
Constitution  to  take  care  that  the  laws  are  faithfully 
executed,  and  the  means  placed  in  his  hands,  both  by 


24 

the  Constitiition  and  the  laws  of  the  United  States,  to 
enable  him  to  do  this,  impose  upon  the  executive 
department  the  duty  of  protecting  a  justice  or  judge 
of  any  of  the  courts  of  the  United  States,  when  there 
is  just  reason  to  believe  that  he  "will  be  in  personal 
danger  while  executing  the  duties  of  his  office. 

In  Wilcox  V.  Jackson,  13  Pet.,  498,  the  Supreme 
Court  held  that  the  President  could  legally  set  aside 
public  lands  for  a  military  post  or  Indian  agency,  in 
the  execution  of  laws  authorizing  him  to  establish 
them  at  such  places  as  he  might  deem  best,  but  not 
expressly  authorizing  him  to  reserve  public  lands. 
And  in  Grisar  v.  McDowell,  6  Wall.,  381,  the  same 
court  call  attention  to  the  fact  that  from  an  early 
period  in  the  history  of  the  Government  it  had  been 
the  practice  of  the  President  to  order,  from  time  to 
time,  as  the  exigencies  of  the  public  service  required, 
parcels  of  land  belonging  to  the  United  States  to  be 
reserved  from  sale  and  set  apart  for  public  uses,  his 
authority  in  this  respect  being  recognized  in  numer- 
ous acts  of  Congress.  Thus,  in  the  Preemption  Act  of 
May  29,  1830,  it  was  provided  that  the  right  of  pre- 
emption contemplated  by  the  act  should  not  "extend 
to  any  land  which  is  reserved  from  sale  by  act  of 
Congress,  or  by  order  of  the  President,  or  which  may 
have  been  appropriated  for  any  purpose  whatever." 
Again,  in  the  Preemption  Act  of  September  14,  1841, 
"lands  included  in  any  reservation  by  any  treaty, 
law,  or  proclamation  of  the  President,  or  reserved  for 
salines  or  other  purpose,"  were  exempted  from  entry. 
So  by  an  act  of  March  3,  1853,  it  was  declared  that  all 
public  lands  in  California  should  be  subject  to  pre- 
emption, and  offered  at  public  sale,  witli  tlie  exception, 


25 

among  others,  ' '  of  lands  reserved  by  competent  author- 
ity^^'' and  tlie  court  say  tliat  by  " conij)etent  authority" 
was  meant  the  authority  of  the  President  and  officers 
acting  under  his  direction.  As  to  the  reservations  then 
in  question  the  court  say  that  they  were  indirectly 
approved  by  the  legislation  of  Congress  in  appropriat- 
ing moneys  for  the  construction  of  fortifications  and 
other  public  works  upon  them.  And  in  the  case  of 
Swaim  v.  United  States,'  it  has  been  finally  settled 
that  the  President,  as  commander-in-chief,  has  the 
constitutional  power  to  convene  courts-martial — a 
striking  illustration  of  an  undefined  constitutional 
power,  for  it  is  nothing  less  than  the  power  to  consti- 
tute tribunals  with  judicial  jurisdiction  extending 
even  to  trials  for  capital  ofi^ences. 

The  President,  said  Mr.  Gushing,  "is  limited  in  the 
exercise  of  his  powers  by  the  Constitution  and  the 
laws :  but  it  does  not  follow  that  he  must  show  a  stat- 
utable provision  for  everything  he  does.  The  Govern- 
ment could  not  be  administered  upon  such  a  contracted 
principle.  The  great  outlines  of  the  movements  of 
the  Executive  may  be  marked  out,  and  limitations 
imposed  upon  the  exercise  of  his  powers,  yet  there  are 
numberless  things  which  must  be  done,  which  can  not 
be  anticipated  and  defined,  and  are  essential  to  useful 
and  healthy  action  of  government." 

•165U.  S.,  553. 

"-Q  Opin.  Atty.  Gen.,  10,  865;  8  id.,  343;  \Oid.,  413.  See  also 
Appendixes  A  and  B. 

In  United  States  ^\  Macdaniel,  7  Pet. ,  14,  the  Supreme  Court 
said :  "A  practical  knowledge  of  the  action  of  any  one  of  the  great 
departments  of  the  Government,  must  convince  every  person  that 
the  head  of  a  department,  in  the  distrihution  of  its  duties  and 
responsibilities,  is  often  compelled  to  exercise  his  discretion.  He 
is  limited  in  the  exercise  of  his  powers  by  the  law ;  but  it  does 


26 

It  is  well  established  that  ' '  the  Secretary  of  War  is 
the  regular  constitutional  organ  of  the  President  for 
the  administration  of  the  military  establishment  of 
the  nation ;  and  rules  and  orders  publicly  promulged 
through  him  must  be  received  as  the  acts  of  the  Ex- 
ecutive, and  as  such,  be  binding  upon  all  within  the 
sphere  of  his  legal  and  constitutional  authority."  ' 

not  follow  that  he  must  show  a  statutory  provision  for  every- 
thing he  does.  No  government  could  be  administered  on  such 
principles.  To  attempt  to  regulate,  by  law,  the  minute  move- 
ments of  every  part  of  the  complicated  machinery  of  government 
would  evince  a  most  unpardonable  ignorance  on  the  subject. 
Whilst  the  great  outlines  of  its  movements  may  be  marked  out, 
and  limitations  imposed  on  the  exercise  of  its  powers,  there  are 
numberless  things  which  must  be  done,  that  can  neither  be  antici- 
jiated  nor  defined,  and  which  are  essential  to  the  proper  action  of 
the  Government.  Hence,  of  necessity,  usages  have  been  estab- 
lished in  every  department  of  the  Grovemment,  which  have  become 
a  kind  of  common  law,  and  regulate  the  rights  and  duties  of  those 
who  act  within  their  respective  limits.  And  no  change  of  siich 
iisages  can  have  a  retrospective  effect,  but  must  be  limited  to  the 
future. " 

In  Caha  v.  United  States,  152  U.  S.,  211,  the  Supreme  Court, 
through  Justice  Brewer,  said :  ' '  The  rules  and  regulations  pre- 
scribed by  the  Interior  Department  in  respect  to  contests  before 
the  Land"  Office  were  not  formally  offered  in  evidence,  and  it  is 
claimed  that  this  omission  is  fatal,  and  that  a  verdict  should  have 
been  instriicted  for  the  defendant.  But  we  are  of  opinion  that 
there  was  no  necessity  for  a  formal  introduction  in  evidence  of 
such  rules  and  regulations.  They  are  matters  of  which  coiirts  of 
the  United  States  take  judicial  notice.  Questions  of  a  kindred 
nature  have  been  frequently  presented,  and  it  may  be  laid  doAvn 
as  a  general  rule,  deducible  from  the  cases,  that  wherever,  by 
the  express  language  of  any  act  of  Congress,  power  is  intrusted 
to  either  of  the  principal  departments  of  G-overnment  to  prescribe 
rules  and  regulations  for  the  transaction  of  business  in  which 
the  public  is  interested,  and  in  respect  to  which  they  have  a  right 
to  participate,  and  by  which  they  are  to  be  controlled,  the  rules 
and  regulations  prescribed  in  pursuance  of  such  authority  become 
a  mass  of  that  body  of  public  records  of  which  the  courts  take 
jiidicial  notice." 

'  United  States  v.  Eliason,  16  Pet.,  302 :  United  States  r.  Fletch- 
er, 148  U.S.,  84;  Opinion  of  Attorney  General  Cushing,  7  Opin.. 
4o3.  The  latter  is  an  especially  full  and  interesting  discussion  of 
this  point. 


27 

So  that  if  section  KU  of  the  Revised  Statutes,  above 
mentioned,  can  be  said  to  liave  any  reference  to  the 
administration  of  military  affairs,  it  would  seem  to  be 
to  this  extent  unnecessary,  the  President  already  hav- 
ing the  constitutional  authority  to  prescribe  regula- 
tions for  this  purpose  through  the  Secretary  of  War. ' 
An  act  of  Congress,  professedly  conferring  on  the 
President  the  power  to  do  an  act  which  he  already 
may  do  by  virtue  of  his  constitutional  authority,  is  no 
more  than  a  declaration  of  the  existing  power^  But 
the  Secretary  of  War  does  not  hold  an  office  created 
and  defined  by  the  Constitution.  His  office  is  a  statu- 
tory one,  and  its  authority  is  subject  to  the  control  of 
Congress,  except  in  so  far  as  his  acts  are  acts  of  the 
President,  in  the  exercise  of  a  constitutional  function, 
in  a  matter  over  which  Congress  has  not  a  superior 
constitutional  power.  Therefore,  section  IGl  of  the 
Revised  Statutes  may  be  regarded  as  conferring  the 
authority  described  directly  on  him  as  one  of  the  heads 
of  departments  referred  to,  and  this  is  not  to  be 
regarded  as  a  delegation  of  legislative  power ;  a  dis- 
tinction, although  not  a  well-defined  one,  existing  be- 
tween those  important  subjects  which  must  be  entirely 
regulated  by  Congress  and  those  of  less  interest,  in 
reference  to  which  a  general  provision  is  made  and 
power  is  given  to  those  who  may  act  under  it  to  fill 
up  the  details  as  incidental  to  its  execution.  This 
matter  is  fully  discussed  in  Griner's  case,  IG  Wis., 
447.''  But  the  regulations  which  the  Secretary  of 
War  is  thus  emjDowered  to  make  are  purely  depart- 

'  6  Dec.  First  Comptroller,  13. 

-  See  also  United  States  v.  Webster,  2  Ware,  40 :  28  Fed.  Cases, 
515,  517. 


28 

raental  regulations  for  the  transaction  of  the  depart- 
mental business  of  the  War  Department.  They  are 
not  Army  regulations  proper. 

Regulations  made  pursuant  to,  or  in  execution  of, 
statutes  are  very  common.  (See  title  "Regulations," 
in  the  index  of  the  Revised  Statutes ;  and  see  the  opin- 
ion of  Mr,  J.  M.  Dickinson,  Acting  Attorney  General, 
dated  October  34,  1896,  Appendix  C.) 

In  the  case  of  the  United  States  v.  Breen '  the  con- 
stitutionality of  such  regulations,  made  pursuant  to 
legislation  declaring  any  violation  of  them  a  misde- 
meanor and  punishable  by  fine  and  imprisonment, 
was  fully  recognized.  In  that  case  Mr.  Justice  Lamar 
said : 

"The  only  ground  relied  uj^on  in  behalf  of  the  de- 
fendant is,  that  the  authority  conferred  by  the  act  of 
Congress  on  the  Secretary  of  War  to  make  and  pro- 
mulgate said  rules  and  regulations  is  legislative,  and 
can  not,  under  the  Constitution  of  the  United  States, 
be,  by  act  of  Congress,  conferred  upon  the  Secretary  of 
War  or  anyone  else,  so  as  to  make  a  violation  thereof 
a  crime  against  the  United  States.  Whether  this  is 
so  or  not  is  the  only  question  to  be  determined. 

' '  If  the  law  empowered  the  Secretary  of  War,  l)y 
rule  or  regulation,  to  make  a  certain  act  criminal,  and 
punishable  as  such,  then  this  prosecution  would  not 
be  maintainable ;  but  it  is  not  the  rule  and  regulation 
which  declares  the  violation  thereof  a  crime,  and  j)un- 
ishable.  All  that  the  Secretary  is  authorized  to  do  is 
to  make  the  rule  and  regulation.  It  is  the  act  of  Con- 
gress which  declares  that  the  unlawful  and  willful 
violation  of  such  rule  and  regulation,  after  it  is  pro- 

'40  Fed.  Rep.,  402. 


29 

niuliiati'd,  shell!  V)o  lield  a  misdemoauor  by  the  person 
viohiting  the  same,  and  that  such  person  shall  he  sen- 
tenced to  pay  a  fine  not  exceeding  $500,  and  shall  suffer 
imprisonment  not  exceeding  six  months  as  a  penalty 
therefor.     Numerous    acts    of   Congress    have    been 
passed  authorizing  the  Postmaster  General,  and  other 
members  of  the  executive  department,  to  make  rules 
and  regulations  for  the  business  pertaining  to  their 
respective   departments,    and    declaring   that,    when 
made  and  promulgated,  a  willful  and  unlawful  viohi- 
tion  of  them  should  be  held  a  crime  against  the  United 
States,  and  the  violators  punished  as  prescribed  in  the 
act.     The  Supreme  Court   of   the  United    States    is 
authorized  by  act  of  Congress  to  adopt  certain  rules 
for  the  government  of  the  inferior  courts,  which,  when 
made,  have  the  force  and  effect  of  law  as  much  as  if 
such  rules  were  directly  enacted  by  Congress,  and  ap- 
proved by  the  President.     The  same  effect  is  to  be 
given  to  the  rule  and  regulation  made  by  the  Secre- 
tary in  this  case.     The  act  of  Congress  denounces  the 
violation  of  it  as  a  crime,  and  prescribes  the  penalty. 
The  criminality  of  the  violation  of  the  rule,  and  the 
liability  of  the  offender  to  indictment  and  to  punish- 
ment upon  trial  and    conviction,  result  directly  and 
exclusively  from  the  legislation  of  Congress.'" 

'  In  Woods  V.  Gary,  Mr.  Jiistice  Cox  of  the  supreme  court  of 
the  District  of  Columbia,  said : 

"If  an  act  of  Congress,  presumed  to  he  approved  by  the  Presi- 
dent, vests  in  the  judges  or  heads  of  the  departments  authority 
to  appoint  subordinate  officers,  then,  by  constitutional  authority, 
the  power  to  appoint  them  is  taken  away  from  the  President; 
and  it  follows,  according  to  this  case,  that  the  power  of  removal 
would  be  equally  taken  away.  The  President  might  dismiss  the 
head  of  a  department  who  would  refuse  at  his  request  to  dismiss 
a  subordinate  or  inferior  officer,  but  would  have  no  power  di- 
rectly to  dismiss  such  officer  himself. 


30 

"It  may  be  regarded,  then,  as  the  settled  law  that  the  power 
of  removal  is  incident  to  the  power  of  appointment,  and,  there- 
fore, that  any  law  which  confers  upon  the  head  of  a  department 
a  power  of  appointment,  ipso  facto,  conveys  a  power  of  removal, 
as  effectually  as  if  that  power  were  expressly  given  by  the  statute! 
The  power  of  removal  is  intrenched  in  the  law.  It  is  created  by 
an  act  of  legislation,  and  it  can  onlv  be  taken  away  or  modified 
by  similar  authority.  The  acts  of  Congress,  therefore,  author- 
izing the  appointment  of  complainant  as  inspector  of  mails,  of 
themselves  gave  the  Postmaster  General  authority  to  remove  him 
at  pleasure,  unless  that  or  some  other  act  of  Congress  has  im- 
posed some  limitation,  condition,  or  restriction  upon  that  power. 

"And  this  brings  us  to  the  inquiry  whether  and  how  far,  if  at 
all,  the  act  of  January  16,  1883,  commonly  known  as  the  Civil 
Service  Act,  affects  the  power  of  removal  at  pleasure  which  the 
Postmaster  General  would  possess  under  his  general  authority 
to  appoint  this  class  of  officers.  It  does,  indeed,  very  materially 
modify  the  power  of  appointment  theretofore  existing,  but  it 
does  not  purport  to  affect  the  power  of  removal,  except  in  a  single 
particular. 

"In  section  13  it  provides  that:  ' No  officer  or  employee  of  the 
United  States  mentioned  in  this  act  shall  discharge  or  promote 
or  degrade,  or  in  any  manner  change  the  official  rank  or  compen- 
sation of  any  other  officer  or  employee,  or  promise  or  threaten  to 
do  so,  for  giving  or  withholding  or  neglecting  to  make  any  con- 
tribution of  money  or  other  valuable  thing  for  any  political  pur- 
pose. ' 

"Substantially  the  same  is  directed  to  be  provided  by  rules,  to 
be  established  by  the  Commission  and  the  President,  in  clause  3 
of  the  second  section.  In  no  other  single  respect  is  the  power  of 
removal  affected  by  any  substantive  and  direct  enactment  of  this 
law. 

"But  it  is  claimed  that  the  Commission  is  empowered  to  pre- 
pare rules  in  aid  of  the  President  for  carrying  this  act  into  effect, 
and  that  said  rules,  when  prepared  and  promulgated,  have  the 
force  and  effect  of  law,  and  that  such  effect  is  to  be  given  to  the 
rules  under  which  the  complainant  seeks  relief. 

"There  can  be  no  doubt  as  to  the  power  of  Congress  or  any 
other  legislative  body  to  delegate  to  subordinate  authorities  the 
power  to  make  rules  and  regulations  within  certain  limits,  which, 
when  made,  will  have  the  force  of  law.  Thus,  corporations,  mu- 
nicipal or  private,  may  be  authorized  to  make  by-laws,  and 
police  commissioners,  boards  of  health,  and  fire  commissioners 
may  be  authorized  to  make  regulations  which  have  the  effect 
of  laws. 

'  •  But  if  any  rule  prepared  by  this  Commission,  whether  pub- 
lished by  the  President  or  not,  should  have  the  effect  of  repealing 
or  modifying  an  act  of  Congress,  it  would  be  an  act  of  legislation, 
and  not  a  regulation  of  a  mere  executive  character,  which  it  was 


31 


clearly  the  object  of  «»«!»» to  a„th«i.e^  ^^SJt^^V^ 

iSfaSE^SiS/E^ncydo'iX^f  Law,  volmne  8.  „age  m. 
"' "  "it";!  i;re°tabHSie<l  proposition  ot  constitntional  law  that 

that  ^„^"  ^4»Xfe  Comme rcrc^^^^^^  Railway  Company 

midue  preferences    etc     It  cieateati.e^  ^^^^  management 

w£ett^-  th^CoZSm^  had  the  jnrisclictional  P0^7r  to  make 
'•^wTliave  therefore,  these  considerations  presented :  First 


33 

function,  and,  having  respect  to  the  large  amount  of  property 
invested  in  raih'oads,  the  various  companies  engaged  therein 
the  thousands  of  miles  of  road,  and  the  millions  of  tons  of  freight 
carried,  the  varying  and  diverse  conditions  attaching  to  such 
carriage,  is  a  power  of  supreme  delicacy  and  importance.  Second.  ■ 
That  Congress  has  transferred  such  a  power  to  any  administrative 
body  IS  not  to  be  presumed  or  implied  from  aiiv  doul)tful  and 
uncertain  language.  The  words  and  phrases  efticacious  to  make 
such  a  delegation  of  power  are  well  understood  and  have  been 
frequently  used,  and  if  Congress  had  intended  to  grant  such  a 
power  to  the  Interstate  Commerce  Commission  it  can  not  be 
doubted  that  it  would  have  used  language  open  to  no  miscon- 
struction, but  clear  and  direct.  Third.  Incorporating  into  a 
statute  the  common -law  obligation  resting  upon  the  carrier  to 
make  all  its  charges  reasonable  and  just,  and  directing  the  Com- 
mission to  execute  and  enforce  the  provisions  of  the  act,  does  not 
by  implication  carry  to  the  Commission  or  invest  it  with  the  power 
to  exercise  the  legislative  function  of  prescribing  rates  which 
shall  control  in  the  future. ' 

' '  And  so,  with  eipial  emphasis,  it  may  be  said  that  the  author- 
ity to  the  Civil  Service  Commission  to  aid  the  President  in  pre- 
paring rules  for  carrying  the  act  creating  that  Commission  into 
effect,  does  not  by  implication  confer  upon  the  President  a  right 
to  virtually  repeal  an  existing  law,  especially  when,  as  we  shall 
see,  that  is  not  at  all  necessary  to  the  effectual  operation  of  the 
act  itself.  And  lastly,  there  is  nothing  in  the  language  of  the 
act  or  the  objects  w-hich  it  professes  to  attain  which  make  it 
necessary  to  attribute  such  executive  power  to  the  Commission 
or  the  President.  The  act  nowhere  requires  that  the  power  of 
removal  vested  in  the  head  of  a  department  shall  be  abridged 
except  m  the  single  particular  of  removal,  because  of  the  refusal 
to  contribute  for  partisan  purposes;  and  therefore  it  is  not 
necessary,  in  order  to  carry  the  act  into  effect,  that  any  rule 
should  be  adopted  abridging  the  power  of  removal  of  the"  Post- 
master General  or  other  head  of  a  department  in  any  other 
respect. 

' '  The  second  section  contains  an  enumeration  of  the  objects 
for  which  the  rules  are  to  provide.  They  are :  For  competitive 
examination,  for  appointment  by  selection  from  those  grades 
highest  as  the  result  of  such  examinations,  for  apportionment  of 
the  appointments  among  the  States  and  Territories  and  the  Dis- 
trict of  Columbia,  according  to  population,  for  a  period  of  pro- 
bation before  absolute  appointment,  for  exemption  of  persons  in 
the  public  service  from  any  obligation  to  contribute  to  any 
political  fund  and  from  being  coerced  into  any  political  action, 
and  for  noncompetitive  examination  in  certain  cases,  and  for 
notice  to  the  Commission  of  all  appointments  made  bv  the 
appointing  power. 

"It  would  be  a  very  irrational  interpretation  which  would  give 
to  the  words  'and  among  other  things,'  which  are  prefixed  to  this 


33 

enumeration,  snch  a  scope  of  meaning  as  to  convey  by  implica- 
tion an  unlimited  authority  to  establish  rules  having  no  relation 
to  the  objects  of  the  law.  If  that  were  a  proper  interpreta- 
tion of  the  law,  these  riiles  might  be  made  to  impose  new  con- 
ditions to  the  power  of  appointment,  and  even  take  it  away 
from  the  heads  of  the  departments  and  vest  it  in  the  Commission 
itself.  The  absurdity  of  such  a  i^roceeding  would  be  manifest, 
and  yet  it  would  be  no  more  obnoxious  to  criticism  than  rules 
modifying  the  power  of  removal,  as  it  existed  before  the  act  was 
passed,  or  in  a  manner  not  warranted  by  the  law  itself. 

"The  law  seems  to  contemplate  the  preparation  of  these  rules 
as  the  joint  act  of  the  Commission  and  the  President.  It  directs 
that  when  promulgated  they  shall  be  observed  by  all  the  officers 
in  the  departments.  It  does  not  in  terms  declare  by  whose  au- 
thority they  are  to  be  promiilgated  and  to  go  into  effect,  but  it  is 
to  be  presumed  that  it  is  to  be  by  the  President.  It  makes  no 
difference,  however,  whether  they  are  to  emanate  from  the  Pres- 
ident or  the  Commission,  for  Congress  is  just  as  incapable  of 
surrendering  its  legislative  authority  to  the  President  as  to  the 
Commission;  and  is  just  as  little  to  be  understood  as  intending 
to  do  so  in  the  one  case  as  in  the  other.  The  simple  inquiry  is 
whether  the  rules  invoked  by  the  complainant,  whether  the  Pres- 
ident or  the  Commission,  or  both,  be  the  authors  of  them,  are 
such  as  the  act  of  Jamiary  16,  1883,  known  as  the  Civil  Service 
Act,  authorized  to  be  established.  In  my  judgment  they  are 
ultra  vires  and  void. 

' '  I  have  no  doubt  that  the  President  may  lay  down  rules  for 
the  internal  policy  of  his  Administration,  and  may  require  his 
chief  executive  officers,  dependent  upon  his  pleasures  for  their 
tenure  of  office,  to  conform  to  them,  or  else  to  sever  their  ofBcial 
relations  with  him,  and  in  that  sense  the  rules  relied  on  by  the 
complainant  were  within  his  political  and  execl^tive  authority. 
But  the  enforcement  of  such  rules  is  a  matter  between  the  Presi- 
dent and  his  Cabinet,  and  not  a  matter  for  the  courts,  or  one  in 
which  the  complainant  has  any  legal  interest.  All  that  I  mean 
to  state  in  this  opinion  is  that  the  rules  in  question  were  not  such 
as  the  Civil  Service  Act  authorizes,  and  do  not  derive  any  efficacy 
from  that  act. 

' '  I  know  of  nothing  more  important  to  the  true  interests  of 
the  country  than  the  policy  which  the  civil-service  legislation 
was  intended  to  initiate  and  loromote,  and  it  is  perhaps  a  matter 
for  great  regret  that  the  act  of  January  16,  1883,  has  not  gone 
further  than  it  does.     But  it  is  my  duty  to  construe  it  as  it  is. 

"To  sum  up,  I  conclude  that,  apart  from  the  Civil  Service  Act, 
the  Postmaster  General  had  the  authority  to  remove  the  com- 
plainant from  office  at  his  pleasure;  that  this  act  makes  no 
change  in  this  respect,  except  to  forbid  removals  for  refusal  to 
contribute  to  partisan  objects ;  that  the  power  to  the  Commission 
and  the  President  to  establish  rules  to  carry  that  act  into  effect 

13190 — 3 


•f. '.!  V  Vf 


34 

does  not  authorize  any  rnle  which  shall  make  a  change  in  the 
law  in  this  respect,  and  that  even  if  this  coiirt  had  jurisdiction 
in  a  case  like  the  present,  the  complainant  is  not  entitled  to  the 
relief  prayed."  .  .-,.,,       ^ 

In  Carr  v.  Gordon,  82  Fed.  Rep.,  379,  it  was  said  with  reference 
to  a  civil  service  rule :  tt   -^  ^  c.l  i. 

"But  on  July  27,  1897,  the  President  of  the  United  States  pro- 
mulgated an  order  announced  as  an  amendment  to  rule  11,  as 
follows :  '  No  removal  shall  be  made  from  any  position  subject  to 
competitive  examination  except  for  just  cause,  and  upon  written 
charges  filed  wnth  the  head  of  the  department  or  other  appoint- 
in"-  officer,  and  of  which  the  accused  shall  have  full  notice,  and 
an" opportunity  to  make  defense.'    This  is  an  authoritative  ex- 
pression by  the  Executive  of  the  United  States  of  his  desire  and 
command  to  his  subordinates  with  respect  to  removal  from  office 
of  those  coming  within  the  scope  of  the  civil  service  regulations. 
Possessed  by  the  Constitution  of  the  power  of  appointment  and 
removal,  except,  possibly,  as  he  may  be  therein  restricted  by  act 
of  Congress,  the  Executive  has  the  right  to  regulate  for  himself 
the  manner  of  appointment  and  removal.     He  may  direct  his 
subordinates,  who  exercise  under  him,  in  certain  cases,  the  power 
of  appointment  and  removal,  ■v\ath  respect  thereto,  and  may  reg- 
ulate the  manner  in  which  they  may  act  for  him ;  but  this  is  an 
administrative  order  of  the  Executive,  not  made  m  compliance 
with  any  law,  or  in  regulation  of  the  execution  of  any  law  enacted 
by  Congress  restricting  his  right  of  removal,  but  is  simply  an 
instruction  to  those  who  hold  positions  by  virtue  of  his  appoint- 
ment of  the  manner  in  which  they  shall  discharge  their  duties  in 
respect  to  the  removal  of  their  subordinates.     The  order  is  not 
the  law  of  the  land ;  it  is  not  the  emanation  of  the  law-making 
power,  but  is  merely  a  regulation  adopted  by  the  Executive,  as 
he  rightfully  might,  in  regulation  of  the  conduct  of  those  who 
are  subject  to  his  authority.     He  made  it,  and  may,  at  his  pleas- 
ure, rescind  it.     The  law  of  the  land  is  not  subject  to  repeal  by 
theExecutive.     The  regulation  and  orders  of  the  Executive  or 
heads  of  departments  under  authority  granted  by  Congress- 
such  as  the  order  under  consideration  here— are  regulations  pre- 
scribed by  law  in  the  sense  that  acts  done  under  them  are  upheld ; 
and  in  that  light  they  may  have  the  force  of  law.     But  the  failure 
to  do  the  act  thereby  enjoined,  or  the  doing  of  the  act  thereby 
prohibited  does  not  render  one  liable  to  the  law.     United  States 
V  Eaton,  144  U.  S.,  677,  688,  12  Sup.  Ct.,  764.     Consequently,  no 
vested  right  to  hold  office  indefinitely  is  acquired  by  the  incum- 
bent by  virtue  of  the  executive  regulation  in  question.     This 
executive  order  or  regulation,  therefore,  confers  no  right  upon 
the  incumbent  of  office  of  which  a  court  of  equity  can  take  cog-, 
nizance      He  who  disobeys  such  order  of  the  President  is  respon- 
sible to,  and  must  be  dealt  with  by,  him.     Courts  of  equity  are 
not  constituted  to  regulate  the  departments  of  the  government. 


35 

Their  jurisdiction  is  limited  to  the  protection  of  the  rights  of 
property.  They  have  no  concern,  as  I  understand  the  boundaries 
of  their  jurisdiction,  over  the  appointment  and  removal  of  public 
officers. " 

See  also  Taylor  v.  Kercheval,  83  Fed.  Rep.,  497,  in  which  case 
the  court  said:  "It  needs  neither  argument  nor  citation  of 
atithority  to  demonstrate  that  neither  the  President  nor  the 
Civil  Service  Commission  is  clothed  with  legislative  powers. 
Neither  can  change  the  law,  either  by  repeal  or  by  making  a 
new  enactment.  And  it  is  equally  elementary  that  Congress 
can  not  delegate  its  legislative  powers  either  to  the  President  or 
the  Civil  Service  Commission.  The  rules  promulgated  which 
place  office  deputies  in  the  marshal's  office  in  the  classified  civil 
list  are  not  a  statute,  nor  have  they  the  force  of  law.  They  are 
merely  executive  rules  and  regulations,  promulgated  by  author- 
ity of  law,  and  are  effective,  if  at  all,  only  as  rules  and  regula- 
tions for  the  internal  control  and  government  of  the  civil  service 
and  the  executive  departments.  The  courts  of  chancery  have 
no  jurisdiction  or  authority  to  enforce  such  rules  or  regulations. 
Their  enforcement  lies  within  the  domain  of  the  executive 
departments,  which  possess  ample  power  to  enforce  the  proper 
observance  of  and  subordination  to  the  rules  and  regiilations 
promulgated  by  the  Executive  for  the  government  of  those 
employed  in  any  executive  department  of  the  government.  If 
the  marshal,  by  the  removal  or  threatened  removal  of  the  com- 
plainant, has  violated,  or  is  about  to  violate,  those  rules  and 
regulations,  there  is  ample  power  in  the  Department  of  Justice 
to  redress  the  wrong,  without  any  resort  to  a  court  of  chancery." 

But  see  the  case  of  Butler  v.  White,  83  Fed.  Rep.,  578,  in 
which  the  court  held : 

' '  First,  that  the  act  known  as  the  '  Civil  Service  Act, '  is  con- 
stitutional; second,  that  Congress  has  not  delegated  to  the 
President  and  the  Commission  legislative  powers ;  third,  that  by 
rule  3,  sec.  1,  the  Internal  Revenue  Service  has  been  placed 
under  the  Civil  Service  Act  and  rules  made  in  pursuance  of  it ; 
fourth,  that  the  plaintiffs  in  these  actions  are  officers  of  the 
Government  in  the  Internal  Revenue  Service;  fifth,  that  they 
cannot  be  removed  from  their  positions  except  for  causes  other 
than  political,  in  which  even  their  removal  must  be  made  under 
the  terms  and  provisions  of  the  Civil  Service  Act  and  the  rules 
promulgated  under  it,  which,  under  the  act  of  Congress,  became 
a  part  of  the  law;  sixth,  that  the  attempt  to  change  the  position 
and  rank  of  the  officers  in  these  cases  is  in  violation  of  law; 
seventh,  that  a  court  of  equity  has  jurisdiction  to  restrain  the 
appointing  power  from  removing  the  officers  from  their  positions 
if  such  removals  are  in  violation  of  the  Civil  Service  Act." 


36 

But  it  is  not  necessary  to  give  further  examples  of 
regulations  made  pursuant  to,  or  in  execution  of,  stat- 
utes. Tliey  are  to  be  met  with,  throughout  our  polit- 
ical system,  and  are  a  necessary  part  of  its  machinery.' 

The  power  to  make  regulations  is  not,  indeed,  con- 
fined to  political  bodies  or  officers.  It  enters  into  other 
relations  of  life — wherever,  in  fact,  government  is 
necessary.^  (See  post,  page  82,  note).  Thus,  corpora- 
tions possess  the  power  of  making  regulations,  includ- 
ing by-laws.  Social  clubs  have  the  power,  and  their 
regulations  are  recognized  by  the  courts  as  binding.' 
We  here   speak  of  by-laws  as  regulations.     In  one 

'  It  would  require  too  ranch  space  to  enumerate  all  the  statu- 
tory provisions  of  this  class  do^\^l  to  the  present  time,  in  which 
"  regulations,"  as  such,  are  authorized  to  be  prescribed.  For  the 
principal  of  those  enacted  iirior  to  1886,  reference  may  be  had  to 
the  first  edition  of  this  work,  page  18-19,  note  3.  Repeated 
instances  also  occur  in  the  statutes  where,  though  the  word 
"regulations"  is  not  employed,  the  same  meaning  is  conveyed  by 
some  equivalent  term  or  expression ;  as  by  the  term  "  directions," 
"instructions,"  "forms,"  "requirements,"  "restrictions,"  "con- 
ditions," "limitations,"  "by-laws."  Not  unfrequently  a  thing 
is  required  by  the  statute  to  be  done  in  such  manner,  etc. ,  as  a 
head  of  a  department,  etc. ,  ' '  may  prescribe. "  The  ' '  Regulations 
for  the  Government  of  the  Re  venue -Cutter  Sei'vice  of  the  United 
States,"  issued  by  the  Secretary  of  the  Treasury,  April  4,  1894,  and 
resting  on  no  aiithority  more  express  than  is  found  in  the  terms  of 
sections  2758  and  2762,  placing  this  corps  (consisting  of  the  offi- 
cers and  crews  of  thirty-six  vessels)  under  the  general  direction 
of  the  Secretary,  is  a  striking  illustration  of  the  discretion  exer- 
cised by  heads  of  departments  in  making  regulations  as  to  matters 
of  detail.     (Winthrop's  Military  Law  and  Precedents,  p.  18.) 

^ '  'A  regulation  is  merely  a  '  governing  direction. '  It  implies 
authority  on  one  side — subjection  on  the  other.  *  *  *  It  is 
distinguished  from  contract,  which  implies  the  right  of  all  par- 
ties to  stipulate  for  terms.  *  *  *  A  regulation  is  an  order  by 
authority."     (Hon.  William  Lawrence,  1  Dec.  First  Comp.,  55.) 

^  Every  public  assembly  has  the  power  to  make  and  enforce 
certain  rules  for  the  transaction  of  business  and  the  preservation 
of  order.  (Jameson  on  Constitutional  Conventions,  p.  463.) 
Passenger-carriers  may  prescribe  reasonable  regulations  for  the 
control  of  passengers,  and  employers  for  their  employees. 


37 


sense  a  distinction  has  been  made  between  them  in  the 
law  of  corporations,  the  by-law  being  held  to  be  more 
nsually  establislied  for  the  government  of  the  internal 
affairs  of  the  corporation,  while  the  regulation  is 
regarded  as  intended  for  the  government  of  its  busi- 
ness with  the  public. '  But  the  word  reg  idation  is  here 
used  in  a  broader  sense  and  as  including  the  by-law. 

In  the  case  of  Yturbide  v.  The  Metropolitan  Club, 
the  court  of  appeals  of  the  District  of  Columbia  said : 
"There  is  no  longer  any  question  of  the  right  of  a 
corporation,  such  as  that  of  the  respondent  in  this  case, 
to  make  by-laws,  even  in  the  absence  of  express  stat- 
utory power,  and  to  exercise  the  power  of  amotion,  as 
incident  to  the  corporation.     This  has  been  regarded 
as  the  settled  law  since  the  case  of  Lord  Bruce,  2 
Strange,  819,  and  the  subsequent  exposition  of   the 
whole  doctrine  in  the  case  of  Rex  v.  Richardson,  1 
Burr.,  517,  539,  by  Lord  Mansfield,  speaking  for  the 
Court  of  King's  Bench  in  1758.    In  this  last  mentioned 
case,  after  reviewing  the  former  decisions  and  the  pre- 
vious doctrine  upon  the  subject,  and  showing  that  the 
older  cases  had  maintained  a  doctrine  that  had  been 
modified  by  the  more  recent  cases,  the  Lord  Chief 
Justice  said :  '  We  all  think  this  modern  opinion  is 
right.     It  is  necessary  to  the  good  order  and  govern- 
ment of  corporate  bodies,  that  there  should  be  such  a 
power  (that  of  amotion),  as  much  as  the  power  to  make 
by-laws.     Lord  Coke  says  (Bagg's  Case,  11  Co.  98a) 
'there  is  a  tacit  condition  annexed  to  the  franchise 
which,  if  he  breaks,  he  may  be  disfranchised.'     But 
where  the  offence  is  merely  against  his  duty  as  a  cor- 
porator, he  can  only  be  tried  for  it  by  the  corporation. 

1  Thompson  on  Corporations,  sec,  937. 


38 

Unless  the  power  is  incident,  franchises  or  offices 
might  he  forfeited  for  offences,  and  yet  there  would 
he  no  means  to  carry  the  law  into  execution.  Sup- 
pose a  hy-law  made  to  give  power  of  amotion  for 
just  cause,  such  a  by-law  would  be  good.  If  so,  a  cor- 
poration, by  virtue  of  an  incidental  power,  may  raise 
to  themselves  authority  to  remove  for  just  cause, 
though  not  expressly  given  by  charter  or  prescription.' 
The  doctrine  of  that  celebrated  case  lias  never  been 
questioned  from  the  time  it  was  announced,  and  it  is 
the  law,  both  in  England  and  in  this  country,  at  the 
present  day.  Com.  v.  St.  Patrick  Ben.  Soc,  2  Binn., 
448,  449;  2  Kent.  Com.,  297." 

As  already  stated  with  reference  to  Army  regula- 
tions made  pursuant  to  statute,  regulations  of  this 
kind  may  be  modified,  but  exceptions  to  them  in  indi- 
vidual cases   can  not  legally  be  made.'     There  is, 

^  This  is  illustrated  by  the  following  newspaper  coraments 
(1897): 

The  appointment  of  General  Tyner  to  be  Assistant  Attorney 
General  for  the  Post  Office  Department  has  been  criticised  by 
some  as  a  violation  of  the  civil  service  law,  in  that  the  place 
being  under  the  Post  Office  Department  was  inchided  within 
the  classified  service  by  an  order  of  President  Cleveland. 

Civil  Service  Commissioner  Procter  to-day  stated  that  when 
President  Cleveland  ordered  the  classification  of  the  Post  Office 
Department,  it  was  not  supposed  that  the  place  of  Assistant 
Attorney  General  for  that  Department  was  within  the  scope  of 
that  order.  When  it  was  found  that  such  was  the  case,  the 
matter  was  broiight  to  the  attention  of  President  McKinley,  who 
excepted  the  place,  allowing  the  appointment  to  be  made  with- 
out examination  by  the  Civil  Service  Commission. 

The  announcement  that  the  President  had  excejited  this  place 
after  it  had  been  included  in  the  classified  service,  even  if  such 
classification  was  the  result  of  a  mistake,  has  created  surprise, 
as  the  Commission  has  contended  that  when  once  a  place  was 
included  in  the  classified  service  by  order  of  the  President,  under 
authority  of  the  civil  service  law,  such  action  had  the  force  of 
law  and  could  not  be  rescinded  except  by  act  of  Congress. 

At  the  office  of  the  Civil  Service  Commission  to-day  it  was 
stated  that  this  view  of  the  effect  of  once  including  a  place  in 


39 


however,  a  difEerence  to  be  observed  m  this  respect 
between  general  regulations  and  specific  acts      Ordi- 
narily when  an  executive  officer  is  empowered  by  law 
to  do  one  specific  act,  as,  for  example,  to  reserve  pub- 
lic land  for  a  specific  public  use,  bis  doing  this  act 
exhausts  his  power  as  to  the  subject-matter      So 
where  he  is  empowered  to  do  a  specific  set  of  acts. 
But  when  he  is  given  a  general  discretionary  power 
to  make  regulations  in  execution  of  a  law  the  power 
to  modify  regulations  once  made  is  included  m  it. 

A  distinction  should,  however,  be  made  between 
essential  regulations  made  in  aid  of  a  statute,  such  as 
are  necessary  to  the  execution  of  the  statute  and  thus 
have  the  appearance  of  being  of  a  decidedly  legislative 
character,  and  regulations  which  are  merely  supple- 
mental to  these  and  relate  to  the  minor  detai  s  of  the 
machinery  for  the  execution  of  the  statute.     These  are, 
to  be  sure,  made  in  aid  of  it  also,  but  are  not  of  the 
character  referred  to.     It  is,  however,  impossible  to 
lay  down  any  rule  which  would  enable  us,  at  a  glance, 
to  distinguish  in  every  case  the  one  from  the  other. 
There  is  not  always  a  clear-cut  line  of  demarcation. 
The  distinction  exists,  but  its  application  must  be  con- 
trolled by  the  facts  of  each  case. 

The  Judge- Advocate  General's  Oflice  has  applied  the 
principle  of  the  binding  character  of  regulations  made 
In  execution  of  statutes  to  regulations  made  for  the 
disbursement  of  an  appropriation,  holdmg  that  when 

could  make  "necessary"  exceptions. 


40 

Congress  makes  an  appropriation,  but  leaves  it  to  the 
Executive  to  prescribe  regulations  for  its  disbursement, 
such  regulations  should  be  regarded  as  made  in  execu- 
tion of  a  statute  (although  not  actually  pursuant  to  it), 
and  therefore  as  falling  under  the  rule  that  they 
are  binding  on  the  authority  who  made  them  as  well 
as  on  others,  and  that  they  may  be  modified,  but 
that  individual  excei)tions  to  them  can  not  be  made. 
And  the  action  of  the  War  Department  is  under- 
stood to  have  been  a  confirmation  of  this  view.  The 
regulations  in  question  related  to  the  expenditure  for 
the  transj)ortation  of  deceased  soldiers  to  the  place 
of  burial.'     Another  example  of  a  regulation  of  this 

'  The  Judge-Advocate  General's  views  were,  on  this  occasion, 
stated  as  follows : 

"Paragraph  162,  Army  Regulations,  provides  that  the  remains 
of  deceased  soldiers  will  be  transported  by  the  Quartermaster's 
Department  to  the  nearest  military  post  or  National  Cemetery 
for  burial,  unless  the  commanding  oflBcer  deems  burial  at  the 
place  of  death  proper.  It  also  prescribes  that  the  expense  of 
transporting  the  remains  is  payable  from  the  appropriation  for 
Army  transportation. 

' '  In  the  case  i)resented  in  this  communication  transportation 
for  the  remains  of  a  deceased  soldier  from  Fort  Walla  Walla  to 
Middletown,  Pennsylvania,  is  asked  for,  and  my  opinion  is 
desired  as  to  whether  the  Secretary  of  War  has  authority  to 
grant  the  request. 

' '  The  regulation  cited  is  one  for  the  disbursement  of  a  public 
fund.  The  appropriation  act  does  not  prescribe  regulations  for 
this  disbursement,  but  leaves  it  to  the  Executive  to  do  so.  This 
is  the  same,  in  effect,  as  if  Congress  had  expressly  authorized 
the  Executive  to  make  regulations.  Therefore,  regulations  made 
by  the  Secretary  of  War,  determining  the  amounts  of  the  dis- 
bursements of  the  appropriation  should,  it  is  believed,  be 
regarded  as  made  in  aid  of  a  statute.  Such  parts  of  the  regula- 
tion as  relate  to  the  purely  administrative  machinery  for  the 
expenditure  of  the  appropriation  may,  however,  in  my  opinion, 
be  distinguished  from  the  quasi  legislative  part  prescribing  the 
amounts  of  the  disbursements.  To  the  former  I  have  no  doubt 
the  Secretary  of  War  can  make  exceptions ;  to  the  latter  I  am  of 
opinion  that  he  can  not.  Regulations  of  this  kind  should,  for 
the  purposes  of  such  inquiry  as  is  made  in  this  case,  be  classed 


41 

kind  is  that  fixing  the  fees  of  civilian  witnesses  hefore 
conrts-martial,  for,  although  in  deference  to  the  views 
of  the  Comptroller  of  the  Treasury  these  fees  have 
been  made  to  conform  to  those  of  witnesses  before  the 
Federal  courts,  as  regulated  by  the  RevisBd  Statutes, 
this  regulation  is  none  the  less  an  exercise  of  the  exec- 
utive power  in  carrying  out  an  appropriation,  and  has 

with  those  made  pursnant  to  statiite,  as  to  which  I  am  of  opinion 
that  they  should  be  held  to  have  become  a  part  of  the  law,  and 
to  be  of  the  same  force  as  the  stattite  itself,  and  that,  although 
they  may  be  changed  by  the  authority  making  them,  they  are 
binding,  on  such  authority  so  long  as  they  are  not  changed,  and 
that  he  can  not  gi-a»t  exceptions  to  them.  (See  my  remarks  on 
the  Army  Regulations,  page  4,  section  2,  aufe,  p.  6.) 

"  It  is  true  that  in  cases  like  the  present  the  regulation  is  not 
actually  made  pursuant  to  statute.  The  statute  does  not  itselt 
expressly  provide  for  the  making  of  the  regulation,  but  leaves  it 
to  be  doiie  by  the  Executive  in  the  exercise  of  the  constitutional 
power  vested  in  him  as  commander-in-chief  and  by  the  require- 
ment that  he  shall  '  take  care  that  the  laws  be  faithfully  execu- 
ted '  But  the  regulation  is  none  the  less  in  aid  of  the  statute 
in  the  relation  which  I  have  indicated— prescribing  an  essential 
rule  for  the  disbursements  to  be  made  under  the  statute,  and 
not  merely  relating  to  the  administrative  means  of  applying  the 

"This  seems  to  me  to  be  the  sound  view  to  take  of  this  matter. 
The  action  of  the  War  Department  has,  however,  not  been  con- 
sistent Avith  reference  to  regulations  of  this  class— possibly 
because  the  difference  between  them  and  purely  administrative 
reo'ulations,  having  no  such  intimate  relation  %\nth  statutes,  has 
not  been  noticed.  With  reference  to  the  regulations  made  pur- 
suant to  the  act  of  Congress  relating  to  the  examination  ot 
enlisted  men  for  promotion,  it  has  been  held  that  they  can  not 
be  waived  in  individual  cases,  and,  on  the  other  hand,  as  I  am 
informed,  the  regulation  prescribing  the  per  diem  allowances  ot 
civilian  employees  when  traveling  under  orders  has  been  waived 
in  individual  cases.  (I  understand  that  the  right  to  make  this 
waiver  has  been  recognized  bv  the  Comptroller  of  the  Treasury, 
although  in  a  decision  of  the  Assistant  Comptroller  with  refer- 
ence to  the  transportation  of  officer's  baggage  the  latter  seemsto 
recognize  the  distinction  which  I  have  made,  for  he  admits  the 
right  of  the  Secretary  of  War  to  make  an  exception  to  a  regu- 
lation prescribing  the'method  of  transporting  an  officer  s  baggage, 
while  apparently  not  admitting  his  right  to  make  an  exception 
increasing  the  money  allowance  for  it  in  an  individual  case. ) 


42 


no  dependence  on  tlie  statute  with  which  it  has  been 
made  to  conform.'     And  another  example  of  such  a 


"The  practice  of  the  War  Department  does  not  therefore 
appear  to  be  uniform,  but,  in  my  opinion,  its  action  in  the  mat- 
ter of  the  regulations  made  in  aid  of  the  statute  relating  to  the 
promotion  of  enlisted  men  is  based  on  the  coiTect  view  of  this 
question,  and,  applying  what  was  held  in  that  matter,  to  the 
present  case,  I  am  of  opinion  that  the  exception  to  a  regulation, 
asked  for,  would  be  contrary  to  the  true  conception  of  the  force 
of  such  regulations  and  therefore  unauthorized. "' 

As  to  the  President's  power  to  make  regulations  prescribing 
allowances,  see  United  States  v.  Webster,  28  Fed.  Cases,  509; 
United  States  v.  Ripley,  7  P.,  18;  24  Ct.  Cls.,  209. 

1  The  following  is  an  extract  from  a  report  of  the  Acting  Judge- 
Advocate  G-eneral,  dated  February  6,  1893,  when  this  subject 
was  iinder  discussion : 

"In  the  Army  Appropriations  Act  an  appropriation  is  each 
year  made  for  the  'compensation  of  reporters  and  witnesses 
attending  upon  courts-martial  and  coiirts  of  inquii-y. '  No  rate 
of  compensation  is  prescribed,  nor  is  it  in  terms  indicated  by 
whom  the  rate  shall  be  fixed;  but  these  appropriations  have 
from  year  to  year  been  made  with  the  knowledge  and  in  recog- 
nition of  the  fact  that  the  law  was  being  supplemented  by  regu- 
lations fixing  the  rates  of  compensation.  This  has  been  done  for 
many  years,  and  the  propriety  of  such  regulations  has  thus  been 
distinctly  recognized  bv  Congress. 

"To  me  it  seems  to  be  entirely  clear  that  the  appropriation 
was  intended  to  be  expended  under  rules  prescribed  by  the  head 
of  the  Department  charged  with  the  expenditure,  and  that  the 
rate  of  compensation  was  a  matter  left  to  the  discretion  of  the 
Secretarv  of  War.  The  Second  Comptroller  does  indeed  refer  to 
section  848  of  the  Revised  Statutes  as  though  it  might  be  held  to 
fix  the  compensation  of  ci\dlians  attending  as  A\atnesses  before 
courts-martial,  but  that  section  relates  entirely  to  the  Federal 
judiciary,  of  which  courts-martial  form  no  part,  and  is  no  more 
applicable  to  courts-martial  than  any  other  provision  of  the  title 
(' Judiciai-y')  in  which  it  is  found. 

"The  fixing  of  the  rate  of  compensation  has,  it  seems  to  me, 
been  purposely  left  bv  Congress  to  the  Secretary  of  War.  It 
has  been  intrusted  to  his  discretion,  and  whenever,  in  the  exer- 
cise of  that  discretion,  he  established  a  certain  rate,  that  decision 
is  legally  conclusive  on  all.  In  my  opinion  the  Second  Comp- 
troller, in  announcing  his  intention  not  to  allow  payments  made 
according  to  the  rates  established  by  the  Secretary  of  War,  is 
exceeding  his  authority. 

"The  disallowance  of  such  payments  will  give  much  trouble, 
and  yet  I  can  not  recommend  the  recognition  of  a  right  on  the 


43 


regulation  was  that  by  which  the  reward  for  the  appre- 
hension of  deserters  was  regulated,  before  Congress 

part  of  the  Second  Comptroller  to  set  aside  ^  T^^^^jlf  ^9^^^^^^  ^y 
the  Secretary  of  War  in  the  exercise  of  a  legal  discretion 

The  powe/of  the  President  to  determine  the  amount  ot  fees  and 
allowances  for  specified  services,  when  an  appropriation  for  them 
fs  Se  but  Congress  does  not  itself  deternune  the  rates  ot  such 
feeJand  allowances,  is  beyond  all  question  and  l^as  been  recog- 
nized by  the  practice  both  of  Congress  and  the  Executive,  as  well 
II  L  the  decisions  of  the  court..     In  UnUed  States^.  Webst^^^^^^ 
Ware  46-  28  Fed.  Cases,  509,  Judge  Ware,  of  the  United  btates 
Sk-t  court  of  Maine,  held,  with  reference  to  an  Army  regula- 
tion making  a  certain  allowance,  as  follows:  .  i     •  i    +• 
'  m?  do  I  see  how  it  can  be  overcome  but  by  a  direct  denial  o 
the  aiithoritv  of  the  Department  to  establish  any  such  rule,  with 
respect  to  exti  a  allowances,  by  general  regulations  aiixl  orders 
Tf  miliars  to  me    that  it  is  fairly  within  the  authority  of  the 
WaTKartme^t:  under  the  sanction  of  the  President  to  estab- 
lish geneial  rules  upon  this  subject,  which,  when  duly  promul- 
gated   will  be  binding  on  the  rights  of  the  ofdcers.     It  is  not 
fonteiicSl  that  an  orcfer  of  the  Executive  can  control  an  act  of 
legislature,  or  deprive  a  party  of  a  right  acquired  under  the 
law      Biit  as  has  been  remarked,  the  legislation  of  Congress  can 
neTer  go  into  all  the  minute  detail  of  regulation,  mvolved  in  the 
JmnpliSted  service  of  the  Army.     Much  must  unavoidably  be 
let^  to  the  discretion  of  the  high  officers,  ^'l^^^^P^"]^  f^J^i^^?* 
branch  of  the  public  service;  and  as  these  matters  of  detail  are 
lefTto  the  regulation  of  the  Department,  it  seems  to  me  reason- 
able when  officers  are  required  to  perform  services  which  do  not 
fall  ^tMn  the  range  of  their  ordinary  duties,  that  it  is  properly 
.Jithhi  the  discretion  of  the  Department  to  determine  what,  and 
^iX r  anreSra  compensation  should  be  allowed  for  such  extm 

service,  taking  care  that  the  rule  be  ^^\\*<^™i' ^"i^^JJ^Sd  eems 
same  way  to  all  similar  cases.  An  authority  ot  this  kind  seems 
to  me  to'i^e  clearly  implied,  in  the  reasoning  of  the  court  in  the 
cases  which  have  been  before  mentioned.  The  amount  ot  com 
Snsation  '  says  Mr.  Justice  McLean,  'in  the  military  service. 
Say  depend  hi  some  degree  upon  the  regulations  of  the  War 
Separtiient;  but  such  regulations  must  be  "^"f, «™;' ,^^^ f.f^^g^^ 
cable  to  all  officers  under  the  same  circumstances.  (United 
States  .Ripley,  7  Pet.  (33U.  S.),  35.)  And  in  still  broader  terms 
he  savs  in  the  opinion  before  quoted,  '  Hence,  of  necessity,  usages 
Save  been  established  in  every  Department  of  the  Government 
wMch  have  become  a  kind  of  common  law,  and  regu  ate  the 
lights  and  duties  of  those  who  act  withm  respective  limits ;  and 
no  change  of  those  usages  can  have  a  retrospective  effect,  but 
must  be  limited  to  the  future. '    (United  States  v.  McDainel,  ul. , 


44 

was  induced  to  take  to  itself  the  determination  of  tlie 
amount  of  the  reward. 

It  is  said  that  regulations  made  under  a  statute  may 
be  referred  to  as  a  practical  interpretation  of  the  stat- 
ute,' In  executing  the  laws  it  is  often  necessary  for 
executive  officers  to  interpret  and  construe  them,  and 
this  may  be  done  by  means  of  regulations.  Such  reg- 
ulations are  valid  and  binding,  unless  declared  by  the 
courts  to  be  erroneous  interpretations  of  the  law.  Each 
new  tariff  act,  for  example,  necessitates  many  such 
regulations,  and  we  have  a  good  illustration  of  this  in 
the  Treasury  Circular  of  September  4,  1897,  with  ref- 
erence to  the  entry  of  personal  effects  under  the  act  of 
July  24,  1897.  In  this  circular  we  find  the  following 
definition  of  the  phrase,  ' '  residents  of  the  United  States 
returning  from  abroad,"  as  it  occurs  in  the  act: 

"The  proviso  in  paragraph  697  contains  special  pro- 
visions and  limitations  concerning  residents  of  the 
United   States  returning  from  abroad.     It  therefore 

15. )  If  usage  is  to  govern,  in  what  manner  does  usage  become 
established  ?  Obviously  in  no  other  way  than  by  the  practice  of 
the  Department.  Apply  the  remark  to  the  case  now  in  judgment. 
A  usage  of  allowing  extra  pay,  for  extra  services  of  any  particu- 
lar kind,  is  established,  by  its  being  charged  in  various  instances, 
and  allowed  and  ordered  to  be  paid,  by  the  Department.  It  is 
obvious,  therefore,  that  no  usage  can  be  established  but  by  the 
concurrence  of  the  Department :  for  no  number  of  charges,  how- 
ever numerous,  on  the  part  of  the  officers,  can  ever  constitute  a 
usage,  under  which  any  right  can  be  claimed,  unless  they  have 
been  allowed.  It  is  the  allowance  which  constitutes  the  usage." 
This  case  was  carried  to  the  circuit  court  by  writ  of  error,  but 
did  not  come  to  a  hearing  until  after  the  decision  in  the  case  of 
United  States  v.  Eliason,  16  Pet.  (41  U.  S.),  291,  made  in  1842. 
It  was  then  affirmed,  without  argument,  upon  the  aiithority  of 
that  decision. 

'United  States  v.  Cottingham.  1  Rob.  (Va.),  635;  Winthrop, 
19,  note. 


45 

becomes  necessary  to  define  the  term  '  residents  of  the 
United  States  returning  from  abroad,'  in  order  that 
customs  officers  may  have  a  reasonable  guide  in  the 
practical  application  of  the  proviso.  The  word  '  resi- 
dent' has,  in  law,  more  than  one  meaning,  much  de- 
pending upon  the  connection  and  purpose  in  which  it 
is  used.  As  used  in  this  proviso  to  paragraph  697,  it 
is  held  by  the  Department  to  include  all  persons  leav- 
ing the  United  States  and  making  a  journey  abroad, 
and,  during  their  absence,  having  no  fixed  place  of 
abode.  Persons  who  have  been  abroad  two  years  or 
more,  and  who  have  had,  during  that  time,  a  fixed 
place  of  abode  for  one  year  or  more,  will  be  considered 
as  nonresidents  within  the  meaning  of  this  law." 

So,  Article  243  of  the  Naval  Regulations  of  1896  pre- 
scribes as  follows:  "The  title  'commander-in-chief,' 
when  occurring  in  naval  laws,  regulations,  and  other 
documents,  shall  be  held  to  refer  to  the  officer  in  chief 
command  of  a  fleet  or  squadron."  And  the  United 
States  circuit  court,  district  of  Massachusetts  (Colt, 
J.),  recognized  this  regulation  as  conclusive,  in  re 
Jesse  G.  Grain,  December  31,  1897. 

And  so  it  is  in  all  the  Executive  Departments.  In 
making  regulations  to  carry  out  a  statute  it  is  often 
necessary  to  place  some  express  interpretation  on  it ; 
and  this  interpretation  holds  good  until  judicially 
reversed.  But,  of  course,  great  care  should  be  taken 
to  avoid  strained  interpretations. 

Many  systems  of  regulations,  besides  Army  and 
Navy  regulations,  have  been  issued,  for  the  transac- 
tion of  the  business  of  different  branches  of  the  Gov- 
ernment, such  as  the  postal,  patent  office,  pension 
office,  land  office,  Indian  office,  civil  service,  customs. 


46 

internal  revenue,  revenue-cutter  service,"  and  other 
treasury  and  consular  regulations,  etc.  But  these 
systems  of  regulations,  as  they  are  here  called,  form 
by  no  means  the  whole  of  that  mass  of  regulation 
law  which  constitutes  so  large  and  important  a  part 
of  our  administrative  law.     All  regulations  are  not 

'  The  regulations  for  the  government  of  the  Revenue-Cutter 
Service  are  in  one  respect  unique :  they  establish  a  penal  system, 
including  a  code  of  penalties  and  a  system  of  procedure.  No 
other  regulations  have  ever  undertaken  to  go  to  this  extreme, 
and  it  may  well  be  doubted  whether  the  executive  power  can 
legally  be  carried  so  far.  An  extract  from  these  regulations  is 
given  in  Appendix  D. 

The  regulations  of  the  United  States  Military  Academy  do, 
indeed,  also  prescribe  a  system  of  punishments,  certain  of  which 
may  be  imposed  by  the  Superintendent,  without  the  intervention 
of  any  trial  court,  but  these  are  regulations  for  the  control  of  a 
school,  and  stand  in  this  respect  on  a  different  footing  from  the 
regulations  for  the  government  of  the  Revenue-Cutter  Sers-ice. 
Moreover  they  are  substantially  based  on  statute,  except,  more 
particiilarly,  in  those  respects  in  which  the  authority  for  the 
regulations  adopted  is  the  power  to  prescribe  the  necessary  rules 
for  a  public  institution  peopled  with  persons  whom  it  is  neces- 
sary to  govern  and  control.  They  are  issued  by  authority  of  the 
President,  but,  had  none  been  so  issued,  the  Superintendent  him- 
self would  have  had  the  power  to  make  such  reasonable  regula- 
tions for  the  government  and  maintenance  of  the  discipline  of 
the  institution  as  would  not  be  inconsistent  with  statute  or  regu- 
lations emanating  from  a  higher  source,  and  he  now  actually  has 
the  power  as  to  matters  necessary  to  regulate  but  which  have  not 
been  covered  by  prescribed  regulations. 

The  Superintendent  of  the  Naval  Academy  has  a  verj-  compre- 
hensive authority  in  this  respect,  which  is  expressly  delegated 
to  him  by  the  Secretary  of  the  Xavy.  In  the  exercise  of  this 
authority  he  issues  a  complete  system  of  ' '  Regulations  for  the 
Interior  Discipline  and  Government  of  the  U.  S.  Naval  Academy," 
covering  subjects  which,  at  the  Military  Academy,  are  governed 
by  regiilations  " '  adopted  by  the  President. "  Both  of  these  Super- 
intendents, in  addition  to  being  in  control  of  schools,  are  com- 
manding officers  of  posts,  with  the  authority  appertaining  to 
them  in  that  capacity. 

See  note,  page  82. 

The  regulations  for  the  government  of  the  Revenue -Cutter 
Service  are  issued  in  the  exercise  of  the  general  executive  power 
of  the  President,  whereas  his  power  to  make  army  regulations 


47 


collected  together  in  systems  or  groups,  but  an  enor- 
mous mass  of  them  consists  of  individual  regulations, 
the  knowledge  of  whose  existence  even  is  ordinarily 
limited  to  the  few  who  have  to  apply  them  to  the  sub- 
jects to  which  they  relate. 

It  is  difficult  to  form  a  true  conception  of  the  vast- 
ness  and  importance  of  all  this  great  body  of  executive 
regulation  law,  controlling,  as  it  does,  the  admmistra- 
tion  of  all  the  executive  departments  with  its  rules  ot 
action  And  when  we  consider  that  these  rules  of 
action  are  in  general  made,  construed,  and  apphed  by 
the  same  authority,  thus  combining  quasi-legislative, 
quasi-judicial,  and  executive  action,  we  cannot  fail  to 
be  very  much  impressed  with  the  extent  of  the  juris- 
diction covered  by  them. 

In  what  has  been  said  only  the  regulation  law  ot  the 
federal  government  has  been  considered.  When  we 
examine  the  State  systems  we  find  there  also  a  great 
deal  of  regulation  law— not  in  such  large  masses,  nor 
in  general  of  such  importance  as  the  federal  regula- 
tion law,  but  nevertheless  occupying  no  insignificant 
place  in  the  State  systems.' JTh^whole^ubject  is  one 

notWd  on  legislation  is  derived  from  his  constitutional  author- 
ftv  as  commander-in-chief.  How  far  this  power  would  extend 
weie  Co ™?not  vested  with  a  superior  power  over  the  subjec^t 
OT  if  be^i?  so  vested,  it  should  entirely  fail  to  exercise  the  power 
Snd  to  provide  any  svstem  of  government  for  the  Army,  it  w'ould 
be  difficult  to  estimate.  Would  he  have  a  power  already  exer- 
cfsecWtii  apparently  less  authorization,  in  the  r™"-lg;«j;/ 
regulations  for  the  government  ot  the  Revenue-Cuttei  beiMce. 

'In  many  of  the  States  the  governors  have  e^P^ff,«j^^*^,^??_y 
authority  to  make  regulations  for  the  Soyernmer^ofthema^^^ 
as  for  example,  in  New  Hampshire,  where  The  commancler 
fn  chief  irauhorized  to  establish  and  prescribe  such  rules 
regulations,  forms,  and  precedents  as  he  may  decern  ^ovev^^^ 
the  use  government,  and  instruction  of  the  New  Hampshiie 
National  Guard,"  and  "to  make  such  changes  and  alterations  m 


48 

of  exceptional  interest,  and  offers  an  enormous  field 
for  investigation. 

The  Supreme  Court  lias  repeatedly  recognized  the 
legality  and  force  of  Army  regulations : 

' '  The  Army  regulations,  when  sanctioned  by  the 
President,  have  the  force  of  law,  because  it  is  done  by 
him  by  the  authority  of  law.  The  regulations  of  1825, 
then,  were  as  conclusive  upon  the  accounting  officer 
of  the  Treasury,  whilst  they  continued  in  force,  as 
those  of  1836  afterwards  were,  and  as  those  of  1841 
now  are.  When,  then,  an  officer  presents  with  his 
account,  an  authentic  document  or  certificate  of  his 
having  commanded  a  post  or  arsenal,  for  which  an 
order  has  been  issued  from  the  War  Department,  in 
conformity  with  the  provisions  of  the  Army  Regula- 
tions, allowing  double  rations,  his  right  to  them  is 
established,  nor  can  they  be  withheld  without  doing 
him  a  wrong,  for  which  the  law  gives  him  a  remedy." 
(United  States  v.  Freeman,  3  How.,  567.) 

"As  to  the  Army  regulations,  this  court  has  too 
repeatedly  said  that  they  have  the  force  of  law  to 
make  it  proper  to  discuss  that  point  anew."  (Gratiot 
V.  United  States,  4  How.,  118.) 


such  rules  and  regulations  from  time  to  time  as  he  may  deem 
expedient ;  but  such  rules  and  regulations  shall  conform  to  this 
act,  and  to  those  governing  the  United  States  Army,  and  shall 
have  the  same  force  and  effect  as  the  provisions  of  this  act. " 

In  Michigan  a  "State  military  board"  is  created,  with  power 
' '  to  prepare  and  promulgate  all  articles,  rules,  and  regulations 
for  the  government  of  the  State  troops,  not  inconsistent  with  the 
laws  of  the  United  States,  or  of  this  State,  and  which  articles, 
rules,  and  regulations,  when  approved  by  the  commander  in  chief, 
shall  be  in  force. " 

Some  of  the  States  have  no  military  regulations  of  their  own, 
but  use  the  United  States  Army  Regulations,  so  far  as  applicable. 


49 

"The  power  of  the  Executive  to  establish  rules  and 
regulations  for  the  government  of  the  Army  is  un- 
doubted."    (United  States  v.  Eliason,  IG  Pet.,  301.) 

"The  Army  Regulations  derive  their  force  from  the 
power  of  the  President  as  commander-in-chief,  and 
are  binding  upon  all  within  the  sphere  of  his  legal 
and  constitutional  aiithority."  (Kurtz  v.  Moffitt,  115 
U.  S.,  503.)     See  also  Swaini   v.  United  States,  165 

U.  S.,  553.' 

With  reference  to  Navy  regulations,  issued  under 
section  1547  of  the  Revised  Statutes,  Attorney  Gen- 
eral Devens  said  that  what  Congress  had  conferred 
on  the  Secretary  of  the  Navy  was  not  any  portion  of 
its  general  power  of  legislation,  but  only  the  right  to 
make  appropriate  regulations  for  the  performance  of 
their  duties  by  those  whom  Congress  had  placed 
under  his  official  control.  But  if  it  is  true  that  the 
source  from  which  the  President  derives  his  authority 
to  make  regulations  is  statutory,  in  the  absence  of 
statute  he  would  have  no  authority,  and  this  we 
know  not  to  be  so.  There  is  no  similar  existing  pro- 
vision of  law  relating  to  the  Army,  but  the  power 
of  the  President  to  make  regulations  for  the  Army  is 
unquestioned. 

'  See  also  United  States  v.  Landers,  92  U.  S.,  77;  ex  parte  Reed, 
100  U.  S.,  13;  United  States  r.  Svnonds,  120  U.  S..  46;  and  Am. 
andEng.  Enc.  of  Law,  "  Military  Law— Army  Regulations. " 

13190 1 


CHAPTER  III. 


APPROVAL  OF  REGULATIONS  BY  CONGRESS. 

An  impression  lias  existed  that  a  peculiar  "force  of 
law"  is  given  to  regulations  by  their  approval  by  Con- 
gress, but  it  seems  to  be  an  erroneous  one.  If,  as  above 
stated,  the  making  of  regulations  is  within  the  juris- 
diction both  of  Congress  and  the  President,  but  the  au- 
thority of  Congress  is  superior  to  that  of  the  President, 
it  follows  that  when  regulations  are  approved  by  Con- 
gress they  can  not  be  altered  by  him  until  the  aj)proval 
is  removed.  To  this  extent  regulations  approved  by 
Congress  may  be  said  to  have  a  superior  force  of  law 
to  those  not  thus  approved,  but  this  is  not  the  errone- 
ous impression  referred  to.  Precisely  what  it  is,  is 
not  clear,  but  it  seems  to  have  been  believed  that  the 
approval  of  regulations  by  Congress  makes  them  of 
higher  obligation.  This,  however,  is  not  true. 
Whether  approved  by  Congress  or  not,  they  have,  so 
long  and  so  far  as  they  are  in  force,  the  force  of  law, ' 
and  are  therefore  binding.  The  distinction,  in  this 
resx^ect,  that  has  sometimes  been  made  between  regu- 
lations approved  by  Congress  and  those  not  thus  ap- 
proved is  misleading, 

'Gratiot  v.  United  States,  4  How.,  118;  United  States  r.  Bar- 
rows. 24  Fed.  Cases,  1018;  United  States  v.  Wade,  75  Fed.  Rep., 
261 ;  McCall's  Case,  2  Phila. ,  269 ;  and  other  authorities  cited  ante, 
and  in  Winthrop's  Military  Law,  vol.  1,  p.  20,  note  2. 

(51) 


52 

Congress  has  on  several  occasions  given  its  sanction 
to  Army  regulations : 

1.  An  act  of  March  3,  1813  (2  Stat.  L.,  819),  pro- 
vided, "  That  it  shall  be  the  duty  of  the  Secretary  of 
the  War  Department,  and  he  is  hereby  authorized,  to 
prepare  general  regulations,  better  defining  and  pre- 
scribing the  respective  duties  and  powers  of  the  several 
officers  in  the  adjutant  general,  inspector  general, 
quartermaster  general,  and  commissary  of  ordnance 
departments,  of  the  topographical  engineers,  of  the 
aids  of  generals,  and  generally  of  the  general  and 
regimental  staff;  which  regulations,  when  approved 
by  the  President  of  the  United  States,  shall  be 
respected  and  obeyed,  until  altered  or  revoked  by  the 
same  authority.  And  the  said  general  regulations, 
thus  prepared  and  approved,  shall  be  laid  before  Con- 
gress at  their  next  session." 

A  system  of  regulations  was  laid  before  Congress, 
as  required  by  the  act.  It  was  published  (together 
with  the  statutes  relating  to  the  military  establish- 
ment) in  book  form,  from  the  Adjutant  and  Inspector 
General's  Office,  May  1,  1813,  and  may  also  be  found 
in  Vol.  I  of  the  American  State  Papers  on  Military 
Affairs. 

2.  By  act  of  April  24,  1816  (3  Stat.  L.,  298),  it  was 
prescribed  "that  the  regulations  in  force  before  the 
reduction  of  the  Army  be  recognized,  as  far  as  the 
same  shall  be  found  applicable  to  the  service,  subject, 
however,  to  such  alterations  as  the  Secretary  of  War 
may  adopt,  with  the  approbation  of  the  President." 
The  reduction  referred  to  was  made  in  June,  1815, 
pursuant  to  an  act  of  March  3. 


53 

The  act  of  April  24,  1810,  did  not  relate  to  any  par- 
ticular code  of  Army  Regulations,  but  to  all  the  regu- 
lations which  were  in  force. 

3.  As  stated  in  some  brief  remarks  on  the  differ- 
ent editions  of  Army  Regulations,  made  on  a  former 
occasion : 

On  the  22d  December,  1819,  the  House  of  Represen- 
tatives resolved  that  "the  Secretary  of  War  be 
instructed  to  cause  to  be  prepared  and  laid  before  this 
House,  at  the  next  session  of  Congress,  a  system  of 
martial  law,  and  a  system  of  field  service  and  police, 
for  the  government  of  the  Army  of  the  United  States." 

On  the  22d  December,  1820,  the  Secretary  of  War 
(Calhoun)  accordingly  submitted  a  system  of  "mar- 
tial law,"  prepared  by  Judge- Advocate  Major  Storrow 
(which  was  never  adopted),  and  a  system  of  field  serv- 
ice and  police,  which  had  been  prepared  by  General 
Scott,  and  submitted  to  the  War  Department  in  Sep- 
tember, 1818.'  ^ 

'  General  Scott,  in  submitting  his  code,  said :  .      .     '        , 

"  T  have  the  honor  to  inclose,  herewith,  the  analysis  of  a  work 
long  since  projected  by  me.  The  accomplishment  of  some  simi- 
lar design  seems  an  important  desideratum  in  our  code  of  military 
instruction  or  legislation.  But,  on  this  point,  the  analysis,  com- 
pared with  existing  regulations,  will  best  speak  for  itself.  I  can 
only  say  that  the  formation  of  it  has  cost  me  much  study  and 
reflection,  aided  by  the  experience  of  a  ten  years'  service,  m  peace 
and  in  war,  in  the  line  and  in  the  staff,  in  the  infantry  and  m  the 

artillery.  ,  ■,     ■      -n         i,         • 

"When  in  Europe  I  collected  every  work,  m  French  or  m 
English,  (not  obsolete)  on  the  service,  police,  discipline,  instruc- 
tion and  administration,  of  an  army.  These  have  been  carefully 
read  and  collated,  and,  under  the  sanction  of  the  War  Depart- 
ment, I  am  now  ready  to  compile  a  book,  to  correspond  with  the 
several  articles  of  the  accompanying  analysis;  taking,  as  a  basis, 
our  own  laws,  regulations,  orders,  and  practice,  as  far  as  the 
paucity  of  the  materials  may  suflBce.  .  . 

"Should  the  idea  of  a  Board  occur,  in  connection  with  this 
offer,  I  would  beg  leave  to  suggest,  that,  joint  labors,  ot  the 


54 

December  26,  1820,  the  Speaker  laid  tliem  before 
the  House.  The  document  was  in  manuscript  and 
was  ordered  to  be  j^rinted,  and  a  copy  laid  upon  the 
desk  of  each  member.  (It  is  reprinted  in  the  third 
volume  of  the  State  Papers  on  Military  Affairs.) 
When  the  book  was  printed  several  copies  were  sent 
to  General  Scott,  who  made  certain  corrections,  and 
on  the  20th  February,  1821,  returned  a  corrected  copy 
(of  which  he  retained  a  duplicate)  to  the  War  Depart- 
ment for  the  Committee  of  the  House.  It  was  re- 
ceived by  the  chairman  of  the  Committee  on  the  23d 
of  February^  1821. 

February  27,  1821,  the  chairman  of  the  Military 
Committee  of  the  House  reported  the  Senate  bill,  ' '  To 
reduce  and  fix  the  military  peace  establishment,"  with 
certain  amendments,  among  which  was  the  addition 
of  a  section  approving  and  adopting  "the  system  of 

literary  kind,  but  rarely  siTCceed ;  and  that  I  have,  personally,  a 
repugnance  to  that  sort  of  employment,  which  nothing  but  a 
positive  order  could  induce  me  again  to  forego.  Indeed,  I  am 
persuaded  (and  from  a  personal  experience  somewhat  in  point) 
that,  of  five  individuals,  of  equal  qualifications,  either  might 
make  a  better  book  than  the  five  taken  together. " 

"Perhaps  it  might  be  well  to  give  the  titles,  etc.,  of  the  works 
from  which  I  should  expect  to  compile ;  but,  as  this  might  also 
seem  ostentatious,  without  a  more  apparent  necessity,  I  will,  at 
present,  confine  myself  to  the  mention  of  the  two  following, 
which  are  the  principal : 

"1.  'Legislation  Militaire,  ou  recueil  methodique  et  raisonne 
des  lois,  decrets,  arretes,  reglemens  et  instructions  actuellement 
(1812)  en  vigueur,  sur  toutes  les  branches  de  I'etat  militaire, '  par 
Berriat,  etc.,  five  large  8vo  volumes,  pp.  2509.  Notwithstand- 
ing the  title  and  the  bulk  of  this  manual  of  the  French  army,  it 
does  not  contain,  except  by  reference,  a  syllable  of  the  tactique 
of  the  several  corps. 

"2.  'General  Regulations  and  Orders  for  the  Army;'  edition 
of  1813 ;  pp.  326,  in  8vo.  The  British  manual,  like  that  above, 
merely  refers  to  the  regulations  on  tactics.  In  the  execution  of 
the  work  now  proposed,  similar  references  would,  occasionally, 
be  necessary." 


55 

General  Regulations  for  the  Army,  compiled  by  Major- 
General  Scott."  The  bill,  including  this  (the  four- 
teenth) section,  became  law  3farch  2,  1821.  Early  in 
that  month,  General  Scott  received  directions  to  put 
the  book  to  press  for  the  use  of  the  Army,  and,  hav- 
ing received  a  letter  from  the  chairman  of  the  Mili- 
tary Committee  of  the  House,  informing  him  that  the 
corrected  copy  had  been  received  and  section  14  added 
to  the  Army  bill  by  way  of  amendment,  he  caused 
the  book  to  be  reprinted  from  his  retained  duplicate 
corrected  copy. 

The  Regulations  were  then— July,  1821— issued  by 
the  War  Department,  ivith  the  corrections,  as  "form- 
ally approved  by  Congress,"  except  as  to  fourteen 
articles,  which,  it  was  stated  in  an  order  of  Secretary 
of  War  Calhoun,  prefacing  the  work,  had  received 
the  sanction  of  the  President. 

This  gave  rise  to  the  question.  Was  the  corrected 
copy  the  one  approved  by  Congress?  In  1823,  a  com- 
mittee of  the  House  of  Representatives  was  appointed 
to  investigate  the  circumstances  attending  its  publi- 
cation. Gen.  Alexander  Smyth,  the  chairman  of  the 
Military  Committee,  stated  that  when  he  proposed 
section  14,  of  the  act  of  1821,  to  the  committee  as  an 
amendment,  he  had  reference  to  the  corrected  Regu- 
lations which  he  had  then  received,  and  that  he  did 
not  recollect  exhibiting  them  to  the  committee,  but 
thought  he  had,  and  believed  that  when  he  reported 
the  amendments  to  the  House,  he  had  the  corrected 
copy  and  deposited  it  with  the  Clerk  with  the  intent 
that  from  that  copy  the  system  should  be  i^ublished. 
These  recollections  were  not,  however,  sustained  by 
the  other  members  of  the  committee  nor  by  the  Clerk 


66 

of  the  House,  None  of  tliem  apparently  had  ever 
seen  the  corrected  copy  before  the  passage  of  the  law, 
but  the  Clerk  of  the  House  thought  he  had  seen  it 
subsequently,  when  General  Smyth  made  a  return  to 
him  of  various  papers  which  had  been  before  the 
committee,  and  he  refused  to  receive  it,  not  consider- 
ing himself  the  proper  repository.  Search  had  been 
made  in  his  office,  but  it  could  not  be  found. 

The  select  committee  reported  that  it  was  an  act 
of  omission,  and  not  of  design,  on  the  part  of  the 
chairman  of  the  Military  Committee  in  not  submit- 
ting the  corrected  copy  to  the  committee. 

The  committee  reported.  May  6,  1822,'  and  Congress 
immediately  passed  an  act — which  was  approved  May 
7 — repealing  the  fourteenth  section  of  the  act  of  1821. 

General  Gaines  was  accused  by  General  Scott  with 
being  instrumental  in  raising  the  opposition  to  these 
regulations. 

4.  By  an  act  of  Congress  of  July  28,  1866,  the 
Secretary  of  War  was  directed  to  have  prepared,  and 
to  report  to  Congress,  at  its  next  session,  a  code  of 
regulations  for  the  government  of  the  Army  and  of 
the  militia  in  actual  service,  including  rules  for  the 
government  of  courts-martial,  the  existing  regula- 
tions (those  of  1863)  to  remain  in  force  until  Congress 
should  have  acted  on  such  report — not,  as  it  has  been 
erroneously  stated,  until  Congress  should  otherwise 
provide. 

It  was  said  by  the  Court  of  Claims  (13  Ct.  Cls.,  6), 
and   repeated    by   Attorney  General   Brewster,  that 

'  For  the  report  of  tliis  committee  (containing  General  Scott's 
explanation),  see  American  State  Papers,  Vol.  XIII,  p.  432. 
General  Scott's  explanation  is  given  in  Appendix  E.  See  also 
Wintlirop's  Military  Law  and  Precedents,  p.  23. 


57 

under  the  act  of  18GG  a  report  of  a  code  of  regulations 
for  the  government  of  the  Army  was  made  but  not 
acted  on.  This  was  evidently  a  mistake ;  a  system  of 
regulations  was  prepared  by  a  board  consisting  of 
Generals  Sherman,  Sheridan,  and  Augur,  but  it  does 
not  appear  to  have  been  submitted  to  Congress.  A 
revision  of  the  Articles  of  War  was  reported,  but  not, 
it  would  seem,  a  code  of  regulations. 

The  act  of  1866  was  construed  by  the  Court  of 
Claims,  the  Attorney  General,  the  Second  Comp- 
troller, and  Secretary  of  War  Belknap'  to  have  had 
the  effect  of  an  adoption  by  Congress  of  the  regula- 
tions of  1863,  but  there  has  been  little  agreement  as 
to  how  long  the  regulations  so  adopted  remained  in 
force.  The  legislation  has  sometimes  been  regarded 
as  repealed  by  the  repeal  x)rovisions  (section  5596) 
of  the  Revised  Statutes,  if  not  already  superseded  by 
the  act  of  July  15,  1870,  which  again  provided  for  the 
preparation  of  a  system'  of  regulations,  to  be  reported 
to  Congress  "at  its  next  session."  It  has  also  been 
held  that  the  regulations  of  1863  remained  in  force,  by 

iJn  submitting  to  Congress,  February  17,  1873,  a  system  of 
regulations  prepared  in  accordance  with  the  provisions  of  an  act 
of  Jiily  15,  1870,  Secretary  Belknap  said:  "The  regtilations  then 
and  now  in  force  are  those  of  1863.  They  are  ten  years  old,  and 
no  longer  adapted  to  the  condition  of  Army  affairs,  but  under 
the  act  of  1866  it  is  impossible  for  the  Executive  to  change  them. 
The  length  of  a  letter  on  a  knapsack,  for  example,  bemg  pre- 
scribed therein,  the  Executive  has  no  power  to  alter  its  size  until 
Congress  shall  authorize  it,  and  the  regulations  now  presented 
will  be  subject  to  precisely  the  same  objection,  and  if  they  are  to 
be  made  law,  not  to  be  altered  or  amended  save  by  act  of  Con- 
gi-ess,  there  are  many  provisions  that  it  would  be  wise  not  to  pre- 
sent, as  experience  may  show  that  alterations  may  be  necessary. 
The  Secretary  of  War,  therefore,  earnestly  recommends  to  Con- 
gress that,  if  formally  approved  by  that  body,  they  be  made 
subject  to  such  alterations  as  the  President  may  from  time  to 
time  adopt. " 


58 

virtue  of  the  legislation  of  1866,  until  superseded  by 
the  regulations  of  1881,  issued  under  the  act  of  July 
23,  1879,  authorizing  the  Secretary  of  War  to  cause 
all  the  regulations  of  the  Army  and  general  orders 
then  in  force  to  be  codified  and  published.'  And  they 
have  been  treated  as  in  force  subsequently  to  this. 
According  to  Second  Comptroller  Maynard,  in  1886 
(Dig.  Opin,  Second  Comptroller,  VIII,  sec.  867),  and 
the  Court  of  Claims,  in  1888  (23  Ct.  Cls.,  461),  they 
were  in  force  at  those  dates,  by  virtue  of  the  legisla- 
tion of  1866. 

Two  codes  of  regulations  have  been  issued  since 
then,  but  not  under  any  act  of  Congress."  If,  there- 
fore, the  regulations  of  1863  were  in  fact  in  force,  by 
legislative  adoption,  at  the  time  of  the  issue  of  the  last 
two  codes  (1889  and  1895),  as  they  were  if  the  Second 
Comptroller  and  the  Court  of  Claims  were  correct, 
they  were  not  legally  alterable  by  the  later  codes,  and 
are  not  legally  alterable  by  executive  action  now,  and 
all  the  actual  alterations  of  rules  that  have  been  thus 
in  fact  made  are  invalid,  and  the  regulations  of  1863 
are  still  legally  in  force.     But  they  were  not. 

The  legislation  of  1866  was  undoubtedly  repealed 
by  section  5596  of  the  Revised  Statutes,  if  it  was  in 
force  up  to  the  date  of  their  enactment.  That  it  was 
repealed  by  the  legislation  of  1870  does  not  appear  to 
be  true,  because  the  provisions  of  the  latter  never 
took  effect.  But  it  would  seem  to  have  expired  by 
virtue  of  its  own  terms  at  the  end  of  the  second  ses- 
sion of  the  Thirty-ninth  Congress,  when  the  report 

'  Attorney  General  Brewster,  17  Opin.,  463. 

^  The  legislation  of  1875,  hereafter  described,  considered  by  the 
light  of  its  history,  is  believed  to  have  been  carried  out,  and  satis- 
fied by  the  promulgation  of  the  regulations  of  1881. 


59  I 

1 


called  for  not  liaving  been  made,  and  it  being  no  longer 
possible  to  make  it  at  that  session,  as  required,  the 
legislation  became  inoperative.  The  regulations  of 
1863  existed  from  that  time  on  (and,  if  not,  certainly 
after  the  enactment  of  the  Revised  Statutes)  as  an 
ordinary  executive  code,  not  stamped  with  legislative 
adoption,  but  liable  to  be  superseded,  and  m  fact 
superseded,  by  the  first  code  issued  thereafter. 


CHAPTER  IV. 


THE  DIFFERENT  EDITIONS  OF  ARMY  REGULATIONS. 

The  following  informatiou  with  reference  to  the 
different  editions  of  Army  Regulations,  although  but 
a  brief  sketch  of  the  history  of  their  adoption,  will, 
it  is  believed,  present  the  matter  in  a  form  convenient 
for  future  use. 

Prior  to  the  adoption  of  the  Constitution,  Congress 
(which  then  constituted  the  Government)  provided, 
from  time  to  time,  for  regulations  for  the  Army,  prin- 
cipally for  the  government  of  the  staff  corps.  In  some 
cases  the  Board  of  War,  then  consisting  of  civilians, 
was  directed  to  make  regulations.  (2  Journals  of 
Congress,  432,  520;  3  id.,  328.)  In  others,  chiefs  of 
the  different  corps  were  so  authorized ;  as  the  Quar- 
termaster General,  for  certain  classes  of  his  employees 
{id.,  126;  3  id.,  253,  496) ;  the  Inspector  General  (3  id., 
203,  523,  525) ;  the  Director  of  Military  Hospitals  {id., 
527) ;  and  the  Medical  Board  {id.,  705).  The  Secretary 
of  War,  after  one  was  appointed  by  Congress,  was,  in 
addition  to  his  general  duties,  required  to  ' '  regulate, " 
or  "direct,"  as  to  certain  special  subjects — as  the  mak- 
ing of  payments  and  returns  and  keeping  of  accounts 
by  regimental  paymasters  (4  Journals,  7),  the  making 
and  transmitting  of  returns  by  officers  generally  {id., 

(61) 


62 

9),  and  the  duties  of  fhe  commissary  general  of 
prisoners  (id.).^ 

In  1779  (March  29)  the  Continental  Congress  adopted 
certain  "Regulations,"  to  "be  observed  by  all  the 
troops  of  the  United  States."  These  had  been  pre- 
pared by  Baron  Steuben,  and  were  published  in  the 
same  year  as  "Regulations  for  the  order  and  discipline 
of  the  troops  of  the  United  States."  They  were,  for 
the  greater  part,  a  system  of  tactics  and  rules  for  the 
camp  and  on  the  march,  but  contained  "  Instructions" 
for  the  different  regimental  officers  and  enlisted  men. 
Another  edition  of  these  "Regulations  "  was  published 
in  1809,  by  M.  Carey,  of  Philadelphia. 

On  the  increase  of  the  Army  in  1798,  in  contempla- 
tion of  war  with  a  foreign  power.  President  Adams 
issued  manuscript  regulations,  supplemental  to  Baron 
Steuben's,  containing  many  rules  jirescribing  duties 
of  the  different  grades  of  officers  and  enlisted  men  in 
service,  and  particularly  as  to  the  administration  in  a 
garrisoned  post  or  barracks. 

In  1808  a  little  volume  containing  the  Articles  of 
War  and  certain  regulations  with  reference  to  allow- 
ances and  promotion  was  published  in  Washington — 
apparently  by  authority — by  ' '  Dinsmore  and  Cooper. " 

Many  of  the  regulations  in  force  at  the  beginning 
of  the  year  1810,  and  which  had  been  issued  at  different 
times  since  1797,  in  the  form  of  General  and  Executive 
Orders,  are  given  in  Duane's  Military  Dictionary.^ 

'  Winthrop's  Military  Law,  p.  21,  note  3.  And  see,  generally, 
the  subject  of  "Regulations  for  the  Army,"  as  discussed  by  this 
author. 

■^ In  this  work  (published  in  Philadelphia  in  1810)  it  was  said: 
' '  There  is  no  coherent  or  consistent  system  of  regulations  in 
existence  for  the  military  establishment  of  the  United  States. 


63 

In  1812  the  statutes  relating  to  the  military  estab- 
lishment and  the  existing  regulations  relating  to  allow- 
ances, promotion,  and  the  duties  of  the  staff  were  col- 
lected together  and  published  in  book  form.  These 
regulations  are  also  to  be  found  in  the  appendix  to 
Maltby  on  Courts-Martial. 

The  regulations  of  1813  have  already  been  men- 
tioned. They  may  be  regarded  as  the  first  of  our 
series  of  codes  of  Army  Regulations,  the  preceding 
publications,  of  1808  and  1813,  making  no  pretense  to 
the  establishment  of  a  complete  system,  but  merely 

The  economy  of  military  arrangement  is  as  essential  as  the  dis- 
cipline of  the  field,  to  assure  the  effects  of  military  operations. 
There  should  be  a  well  digested  system  of  regulations,  and  upon 
that  system  should  be  engrafted  a  staff,  susceptible  of  adaptation 
to  the  peace  or  the  war  establishment,  to  the  smallest  or  the 
largest  force.  The  French  have  derived  the  greatest  advantage 
from  their  regulations,  which  have  been  formed  by  a  well  digested 
body  of  principles  adapted  to  all  circumstances,  and  the  enforce- 
ment and  execution  of  which  is  always  distinctly  appropriated 
to  the  proper  officers  of  the  staff.  At  present  the  regulations  ot 
the  United  States  Army  is  confined  to  a  few  general  orders  from 
the  War  Department,  on  detached  points  of  service ;  and  of  occa- 
sional orders  of  the  commander-in-chief,  issued  upon  some  exi- 
gency, at  remote  periods,  and  adopted  into  permanent  use.  In 
many  instances  these  regulations  have  been  altered  by  the  War 
Office,  in  others  the  circumstances  which  gave  rise  to  them  have 
ceased  and  the  regulations  become  obsolete  or  inappropriate. 
In  1810,  an  attempt  was  made,  by  the  establishment  of  a  Quarter- 
master General's  Office,  to  commence  something  like  a  system ; 
should  this  be  accomplished  it  may  be  beneficial,  though  the 
want  of  information  in  the  duties  of  a  staff,  particularly  if  those 
heretofore  arranged  under  the  Quarteniiaster  General's  Depart- 
ment alone  are  to  be  adopted,  that  it  is  to  be  feared  the  system 
may  remain  defective,  should  the  old  English  model,  now  exploded 
by  the  British  themselves,  be  kept  in  view  instead  of  the  more 
enlarged  system  introduced  in  modern  wars.  The  treatise  on  the 
staff  by  Grirnoard,  contains  the  best  body  of  regulations  extant. 
It  has'  been  translated  and  will  form  a  part  of  the  American 
Military  Library.  . 

"  The  following  are  among  the  principal  regulations  m  torce 
at  the  beginning  of  the  year  1810: " 

[Then  follow  the  regulations  referred  to.] 


64 

republishing  a  few  existing  regulations.  The  greater 
part  of  this  publication  is,  however,  also  taken  up  with 
a  republication  of  statutes.  The  part  of  it  devoted  to 
regulations  would  not  equal  20  pages  of  our  present 
Regulations. 

Editions  of  Army  Regulations  were  also  issued  in 
1814,  1816,  1817,  and  1820.  Those  of  1817  and  1820 
were  republications  of  the  edition  of  1816,  with  the 
addition  of  regulations  issued  by  the  War  Department 
subsequently.  These  Regulations  may  be  found  in  the 
Library  of  Congress.  Another  edition  Avas  published 
in  1815,  by  Webster  &  Skinners,  of  Albany,  New  York, 
but  this  was  not  an  authorized  edition. 

An  edition  was  also  issued  in  1821,  under  the  cir- 
cumstances already  described. 

The  next  edition  was  that  of  1825.  It  was  a  revis- 
ion by  General  Scott  of  his  Regulations  of  1821.' 

In  1834  a  system  of  general  regulations  for  the 
Army  was  published  by  Francis  P.  Blair,  of  Wash- 
ington. A  copy  of  it  is  in  the  War  Department 
Library.  It  was  not  an  authorized  edition,  but  seems 
substantially  to  coincide  with  that  which  was  pub- 
lished in   1835   by   authority   and   is   known  as  the 

>  A  number  of  important  regulations  were  published  in  1833, 
in  Order,  No.  48,  of  tbat  year— "The  48th  Connnandmant, "  as  it 
seems  to  have  been  called.  (Military  and  Naval  Magazine,  Sep- 
tember, 1834.)  In  an  article  copied  into  this  magazine  from  the 
'  'American  Quarterly  Review, "  in  1833,  it  was  said :  ' '  Under  the 
presidentship  of  Mr.  Monroe,  and  the  secretaryship  of  Mr.  Cal- 
houn, a  new  era  was  formed  in  our  national  defence,  the  bene- 
ficial influences  of  which  will  continue  to  be  felt  as  long  as  we 
are  a  free  nation.  Our  present  system  of  accountableness  and 
responsibility  was  then  established.  *  *  *  From  that  period 
the  War  Department  has  held  a  new  rank  in  the  Cabinet,  and 
assumed  a  corresponding  elevation  in  popular  opinion.  Pre- 
viously, it  had  been  regarded  merely  as  the  headquarters  of  the 
Army. " 


65 

Macomb  Regulations,  having-  been  revised  by  General 
Macomb.  Some  amendments  to  these  were  made  in 
an  order  from  the  War  Department,  dated  December 
31,  1836,  in  which  it  was  declared  that  the  General 
Order  prefixed  to  the  Regulations  of  1835  had  never 
been  promulgated,  nor  been  in  force,  and  directing 
the  page  containing  it  to  be  canceled,  and  the  order 
of  December  31,  1836,  to  be  inserted  in  its  place. 

Another  edition  of  Army  Regulations  was  issued  in 
1811,  and  a  revision  by  Gen.  E.  D.  Townsend  in  1847. 

The  next  edition  was  that  of  1857,  when  Jefferson 
Davis  was  Secretary  of  War,  and  sometimes,  on  this 
account,  called  the  "  Jeff.  Davis  Regulations."  Tra- 
dition seems  to  connect  Gen.  Don  Carlos  Buell  with 
the  preparation  of  these  Regulations,  but  there  is  no 

record  of  it. 

The  Regulations  of  1817  contained  the   following 

article:  ^„  ^ 

ARTICLE  X. 

THE  COMMANDER  OF  THE  ARMY. 

IS  The  military  establishment  is  placed  under  the 
orders  of  the  Major-General  Commanding-in-Chief, 
in  all  ^hat  regards  its  discipline  and  military  control. 
Its  fiscal  arrangements  properly  belong  to  the  admin- 
istrative departments  of  the  staff,  and  to  the  Treasury 
Department  under  the  direction  of  the  Secretary  ot 

War. 

49 "  The  General  will  watch  over  the  economy  of 
the  service,  in  all  that  relates  to  the  expenditure  ot 
money,  supply  of  arms,  ordnance,  and  ordnance- 
stores,  clothing,  equipments,  camp-equipage,  medical 
and  hospital  stores,  1  )arracks,  quarters,  transportation, 
fortifications.  Military  Academy,  pay  and  subsist- 
ence—in short,  everything  which  enters  into  the  ex- 
penses of  the  military  establishment,  whether  personal 


131'JO- 


6(3 

or  national.  He  will  also  see  that  the  estimates  for  the 
military  service  are  based  npon  proper  data,  and  made 
for  the  objects  contemplated  by  law,  and  necessary  to 
the  dne  support  and  useful  employment  of  the  Army. 
In  carrying  into  effect  these  important  duties,  he 
will  call  to  his  counsel  and  assistance  the  staff,  and 
those  officers  proper  in  his  opinion  to  be  employed  in 
verifying  and  inspecting  all  the  objects  which  may 
require  attention.  The  rules  and  regulations  estab- 
lished for  the  government  of  the  Army,  and  the  laws 
relating  to  the  military  establishment,  are  the  guides 
to  the  Commanding  General  in  the  performance  of 
his  duties. 

This  article  (and  General  Scott  laid  stress  on  the 
fact  that  it  was  drawn  up  with  care  under  the  eye  of 
Secretary  Marcy,  and  approved  by  President  Polk 
during  his  absence  in  Mexico)  was  omitted  from  the 
Regulations  of  185T,  and  a  bitter  attack  on  the  Secre- 
tary of  War  by  General  Scott  followed.  An  account 
of  the  controversy  which  thus  arose,  as  well  as  of  the 
circumstances  that  led  up  to  it,  is  given  in  a  paper 
by  Mr.  W.  A.  DeCaindry,  on  "The  establishment  of 
the  War  Department  as  one  of  the  Executive  Depart- 
ments of  the  United  States  Government,  with  a 
general  view  of  its  interior  organization  and  adminis- 
tration," published  in  1878,  as  an  appendix  to  the 
report  of  the  Joint  Committee  of  Congress  on  the 
Regulations  of  the  Army.  General  Fry,  in  his  work 
on  brevets,  gives  a  copy  of  General  Scott's  objections 
to  the  Regulations  of  1857,  and  of  Secretary  Floyd's 
reply,  in  which  hitter  occurs  the  following  passage : 

The  failure  to  insert  in  the  new  regulations  a  defini- 
tion of  the  duties  and  authority  pertaining  to  the  office 
of  Commander  in  Chief  of  the  Army,  which  was  con- 
tained in  the  old  regulations,  I  am  satisfied,  does  not, 


67 

in  any  degree,  take  from  it  any  power,  antliority,  lionor 
or  command  conferred  npou  that  liigli  office  by  law. 
Definitions  are  always  difficult,  sometimes  impossible. 
The  definitions  in  the  old  regnlations,  attempting  to 
define  the  duties  of  the  principal  officers  of  the  Army, 
are  not,  in  my  judgment,  satisfactory ;  and  I  think  the 
new  regulations  wisely  follow  the  example  set  by  those 
which  you  prepared  in  1825,  in  which  no  definitions 
were  attempted." 

The  regulations  in  question  were  never  restored. 
The  Regulations  of  1861  were  a  repetition  of  those  of 
1857,  with,  however,  some  modifications.     There  is  a 
remarkable  lack  of  information  in  the  War  Depart- 
ment in  regard  to  the  preparation  of  this  code. 

The  Regulations  of  1863  were  prepared  by  General 
Breck,  and  were  issued  under  the  authority  of  Secre- 
tary of  War  Stanton.  They  contain  the  previous  Army 
Regulations  of  1861,  except  an  entirely  new  regulation 
for  the  Subsistence  Department,  which  was  approved 
separately;  and  they  omit  those  for  the  Engineer 
Department,  and  are  supplemented  by  an  appendix 
containing  "changes  and  additions  to  the  Army  Reg- 
ulations up  to  June  25,  1863."  As  this  was  not  a  com- 
plete revision  of  the  regulations,  Mr.  Stanton  preferred 
to  leave  the  original  order  (of  the  Regulations  of  1861) 
for  its  observance  in  the  new  edition,  and  to  publish 
it  as  the  Regulations  of  1861,  with  the  additions  above 
described. 

The  legislation  of  1866,  as  affecting  the  Regulations 
of  1863,  has  already  been  discussed.  This  legislation 
required  the  Secretary  of  War  to  have  prepared  and 
to  report  to  Congress  at  its  next  session  a  code  of  reg- 
ulations for  the  government  of  the  Army.     The  draft 


68 

of  a  code  was  prepared  by  General  Townsend,  and 
was  submitted  to  a  board  convened  in  December,  1867, 
consisting  of  Generals  Sherman,  Sheridan,  and  Augur. 
In  February,  1868,  the  board  reported  the  completion 
of  their  duties,  and  submitted  the  regulations,  revised 
by  them,  and  approved  by  General  Grant.  June  12, 
1868,  General  Schofield,  Secretary  of  War,  made  a 
communication  to  Congress,  in  which  he  said : 

' '  A  very  carefully  prepared  system  of  Regulations 
for  the  Army  and  Militia  is  now  in  my  hands  awaiting 
the  action  which  may  be  taken  on  the  Rules  and  Arti- 
cles of  War,  with  a  view  to  making  any  alterations  in 
them  which  may  be  required  if  the  said  Rules  and 
Articles  should  be  changed. 

"In  my  judgment,  however,  it  would  be  unwise  to 
subject  a  code  of  General  Regulations  for  the  Army 
to  the  formal  action  of  Congress,  thus  giving  them  a 
fixed  character,  unalterable  except  by  the  same  formal 
action.  All  matter  in  the  Regulations  which  should 
properly  be  bound  by  force  of  law  is  actually  made 
in  exact  conformity  with  military  acts  of  Congress, 
and  is  always,  when  practicable,  in  the  precise  lan- 
guage of  the  laws.  But  there  are  very  many  matters 
of  detail  which  depend  upon  the  daily  changing  neces- 
sities of  the  service,  and  are  regulated  by  the  expe- 
rience and  intelligence  of  practical  men  in  the  Army, 
which  should  be  left  for  modification,  as  often  as  cir- 
cumstances demand,  to  the  discretion  of  the  Secretary 
of  War  and  the  President.  It  is  a  principle,  well  un- 
derstood and  invariably  acted  upon,  that  whenever  a 
regulation  becomes  in  conflict  with  a  law  of  Congress, 
it  is  null  and  void.  The  law  is  thus,  as  it  were,  a 
constitution,  and  regulations  are  simply  the  by-laws 
based  thereon. 


G9 


'^  The  jiutliority  to  niake  alterations  in  the  Regula- 
tions was  vestecfby  act  of  April  24,  IS  10,  in  the  Sec- 
retary of  War,  with  the  approval  of  the  President,  and 
has  l)een  ever  since  so  exercised  with  this  exception, 
that  by  an  act  of  March  2,  1821,  a  system  prepared  by 
General  Scott,  nnder  an  act  of  March  3,  1813,  "was 
approved  and  adopted."     But  this  act  of  March  2, 
1821,  was  repealed,  in  terms,  by  an  act  of  May  7,  1822, 
leaving  the  act  of  April  24,  181('.,  still  in  operation. 
The  Army  Regulations  are  always  public  and  easy  of 
reference,  and  Congress  can  readily  at  any  time  cor- 
rect, by  legislation,   an  objectionable   feature  which 
may  appear  in  them. 

"I  recommend  that  so  much  of  section  37,  act  of 
July  28,  18G(3,  as  requires  this  code  of  Regulations  to 
be  reported  to  Congress,  be  repealed.  Its  several  parts 
have  been  prepared  by  officers  of  the  largest  experience 
and  greatest  familiarity  with  the  operations  of  their 
particular  branches  of  the  Army,  and  the  whole  sys- 
tem has  been  very  carefully  examined,  arranged,  and 
harmonized  by  a  board  of  the  first  officers  in  the  Army. 
It  has  received  the  approval  of  General  Grant,  who 
has  been  consulted  on  all  important  points." 

No  further  action  was  taken  with  reference  to  the 
system  of  Regulations  prepared  by  the  Sherman 
Board.  In  submitting  it  to  the  Secretary  of  War,  the 
board  remarked : 

"It  has  been  our  earnest  endeavor  to  make  this  sys- 
tem as  simple,  plain,  and  consistent  in  all  its  parts  as 
possible,  and  to  make  no  changes  from  established 
usages,  except  where  we  were  convinced  by  actual 
experience  that  they  were  necessary  to  the  service. 
The   regulations   for  the    staff   departments    are   all 


70 

based  substantially  on  the  recommendations  of  the 
present  heads  of  departments,  save  and  except  that  we 
place  all  the  heads  of  departments  in  the  same  relation 
to  the  General  of  the  Army  as  the  law  already  places 
him,  the  General,  in  relation  to  the  President,  the 
constitutional  Commander-in-Chief.  We  have  also 
endeavored  more  clearly  to  define  the  relative  duties 
of  the  Secretary  of  War  and  the  General-in-Chief. 
Their  relative  spheres  of  duty  are  so  important,  and 
harmony  of  action  on  their  part  is  so  directly  reflected 
by  the  Army  itself,  that  we  think  too  much  impor- 
tance can  not  be  given  to  this  branch  of  the  subject." 
The  following  were  the  regulations  with  reference 
to  the  duties  of  the  General-in-Chief  proposed  by  this 
board : 

"  1 .  The  military  establishment  is  under  the  orders 
of  the  GeneraJ  of  the  Army  in  all  that  regards  its  dis- 
cipline and  military  control.  Its  fiscal  arrangements 
properly  belong  to  the  administrative  departments  of 
the  staff,  and  to  the  Treasury  Department,  under  the 
direction  of  the  Secretary  of  War. 

"  2.  The  headquarters  of  the  General  of  the  Army 
shall  be  at  the  city  of  Washington,  and  all  orders  and 
instructions  relating  to  military  operations  issued  by 
the  President  or  Secretary  of  War  shall  be  issued 
through  the  General  of  the  Army,  and,  in  case  of  his 
inability,  through  the  next  in  rank.  The  General  of 
the  Army  shall  not  l>e  removed,  suspended,  or  relieved 
from  command,  or  assigned  to  duty  elsewhere  than  at 
said  headquarters,  except  at  his  own  request,  Avithout 
the  previous  approval  of  the  Senate ;  and  any  orders 
or  instructions  relating  to  military  operations  issued 
contrary  to  these  requirements  shall  be  null  and  void ; 


71 

and  any  officer  who  shall  issue  orders  or  instructions 
contrary  to  the  provisions  of  this  law  shall  be  deemed 
guilty  of  a  misdemeanor  in  office ;  and  any  officer  of 
the  Army  who  shall  transmit,  convey,  or  obey  any 
orders  or  instructions  so  issued  contrary  to  the  jDro- 
visions  of  this  section,  knowing  that  such  orders  were 
so  issued,  shall  be  liable  to  imprisonment  for  not  less 
than  two  nor  more  than  twenty  years,  upon  conviction 
thereof  in  any  court  of  competent  jurisdiction. 

"  3.  The  General  will  watch  over  the  economy  of  the 
service,  in  all  that  relates  to  the  expenditure  of  money, 
supply  of  arms,  ordnance,  and  ordnance-stores,  cloth- 
ing, equipments,  camp-equipage,  medical  and  hospital 
stores,  barracks,  quarters,  transportation,  fortifica- 
tions, Military  Academy,  pay  and  subsistence — in  short, 
everything  which  enters  into  the  expenses  of  the  mili- 
tary establishment.  He  will  see  that  the  estimates  for 
the  military  service  are  based  upon  proper  data,  and 
made  for  the  objects  contemplated  by  law,  and  neces- 
sary to  the  due  support  and  useful  employment  of  the 
Army.  He  will  call  to  his  counsel  and  assistance  the 
staff,  and  those  officers  proper  in  his  opinion  to  be 
employed  in  verifying  and  inspecting  all  the  objects 
which  may  require  attention.  The  rules  and  regula- 
tions established  for  the  government  of  the  Arnij^, 
and  the  laws  relating  to  the  military  establishment, 
are  the  guides  to  the  General  in  the  performance  of 
his  duties." 

The  regulation  numbered  2  was  copied  from  a  pro- 
vision of  the  Army  Appropriation  Act  of  March  2, 18GT, 
which,  as  the  President  declared  in  a  message  to  Con- 
gress, deprived  him  of  his  constitutional  functions  as 
commander-in-chief,  but  which  he  was  compelled  to 


72 

countenance,  as  "by  withholding  his  signature  he  would 
defeat  necessary  appropriations.  The  legislation, 
enacted  for  a  clearly  unconstitutional  purpose,  was 
repealed  in  the  Army  Appropriation  Act  of  July  15, 
1870,  when  the  iJolitical  conditions  were  changed.  It 
was  not,  indeed,  quietly  submitted  to  by  the  President, 
who  on  the  3d  of  September,  1867,  issued  his  procla- 
mation in  which  officers  of  the  Army  and  Navy  were 
reminded  that  in  accepting  their  commissions  they 
incurred  the  obligation  to  observe,  obey,  and  follow 
such  directions  as  they  might  from  time  to  time 
receive  from  the  President,  (u-  the  General,  or  other 
superior  officers  set  over  them,  according  to  the  rules 
and  discipline  of  war,  and  were  enjoined,  in  this  direct 
manner,  to  assist  and  sustain  the  courts  and  other  civil 
authorities  of  the  United  States  in  the  administration 
of  the  laws. 

By  an  act  of  July  15,  1870  (16  Stat.,  319),  Congress 
prescribed  : 

"That  the  Secretary  of  War  shall  prepare  a  system 
of  general  regulations  for  the  administration  of  the 
affairs  of  the  Army,  which,  when  approved  by  Con- 
gress, shall  be  in  force  and  obeyed  until  altered  or 
revoked  by  the  same  authority  ;  and  said  regulations 
shall  be  reported  to  Congress  at  its  next  session  :  Pro- 
vided, That  said  regulations  shall  not  be  inconsistent 
with  the  laws  of  the  United  States." 

Pursuant  to  this  legislation,  the  Marcy  Board  was 
convened  July  3,  1871.  The  members  of  this  Board 
were  Col.  R.  B.  Marcy,  J.  H.  King,  and  H.  J.  Hunt, 
and  Majors  R.  I.  Dodge  and  A.  J.  Alexander.'  During 
November  and  December,  1871,  and  January,  1872, 
the  report  of  the  Board  was  critically  considered  by  the 


73 


Secretary  of  W:iv,  hy  wliom  Asst.  Adjt.  Gen.  Thomas 
M.  Vincent,  as  the  representative  of  the  Secretary, 
had  been  associated  with  the  Board  for  the  pnrpose  of 
a  further  consideration  of  tlie  proposed  system.     The 
system  of  reguhitions  thus  finally  prepared  hy  this 
Board  was   submitted   to   Congress  by  Secretary  of 
War  Belknap,  February  ITth,  187:5  (see  Appendix  F), 
and  was  published  as   H.   R.  Report  No.  85,  Forty- 
second  Congress,  third  session.     On  the  13th  of  May, 
1874,  the  Military  Committee  of  the  House  made  a, 
report  on  the  subject  (Appendix  G),  concluding  with 
a  recommendation   of   the   legislation    subsequently 
(March  1,  1875)  enacted.     It  provided: 

"That  so  much  of  section  twenty  of  the  act  approved 
July  fifteenth,  eighteen  hundred  and  seventy,  entitled 
'An  act  making  appropriations  for  the  support  of  the 
Army  for  the  year  ending  June  thirtieth,  eighteen 
hundred  and  seventy-one,  and  for  other  purposes,'  as 
requires  the  system  of  general  regulations  for  the 
Army  therein  authorized  to  be  reported  to  Congress 
at  its  next  session,  and  approved  by  that  body,  be,  and 
the  same  is  hereby,  repealed;  and  the  President  is 
hereby  authorized,  under  said  section,  to  make  and 
publish  regulations  for  the  government  of  the  Army 
in  accordance  with  existing  laws." 

In  1876,  a  compilation  was  prepared  by  Capt.  K  N. 
Scott,  and  printed  under  the  following  authentication : 

"War  Department,  July  i,  1S7(>. 

"These  regulations  are  a  compilation  of  all  rules  for 

the  government  of  the  Army,  which  were  in  force 

January  1,  1876,  and  are  based  upon  the  Army  Regu- 

tations  of  1863,  as  altered  or  amended  by  orders,  cir- 


74 

ciilars,  decisions,  and  laws  passed  since  the  latter  year. 
Compiled,  under  the  direction  of  the  Secretary  of 
War,  by  Capt.  R.  N.  Scott,  V.  S.  Army. 

"H.  T.  Crosby, 

''Chief  Clerk." 

This  compilation  was  printed,  but  was  not  published 
to  the  Army,  and,  notwithstanding  the  foregoing 
indorsement,  was  not  an  authorized  code.  The  rec- 
ords of  the  War  Department  seem  to  furnish  no  fur- 
ther information  with  regard  to  the  circumstances  of 
its  preparation,  but  it  may  have  been  the  final  arrange- 
ment of  a  compilation  made  by  Mr.  John  Tweedale, 
which  consisted  of  the  Regulations  of  1863,  brought 
to  date,  agreeably  to  subsequent  orders  and  amend- 
ments. 

Just  a  month  before  this  General  Sherman  had  called 
attention  to  the  necessity  of  a  revision  of  the  Army 
Regulations,  and  had  recommended  that  the  work  of 
preparing  a  new  code  be  assigned  to  General  Schofield. 
Fortunately,  he  said,  the  task  would  be  rendered  com- 
paratively light  by  the  fact  that  two  systems  of  regu- 
lations had  already  been  prepared  and  were  in  print  5 
one  compiled  in  18(38-60  by  a  board  consisting  of  Gen- 
erals Sherman,  Sheridan,  and  Augur,  and  the  other 
compiled  by  the  "  Marcy  Board"  in  1873.  It  would, 
he  thought,  be  preferable  to  have  a  single  officer 
assigned  to  this  work,  rather  than  a  board,  because  a 
board  would  be  apt  to  begin  de  novo  and  go  again 
over  the  very  ground  already  well  studied  by  jDre- 
vious  boards. 

General  Schofield  entered  upon  this  work,  agreeably 
to  General  Sherman's  recommendations,  but  no  system 


75 


of  regulations  prepared  by  liim  was  published.'  The 
first  five  articles  of  such  a  system  were,  however, 
printed,  and  referred  to  heads  of  staff  departments  for 
remark.     One  of  the  articles  was  as  follows : 

"  The  chiefs  of  the  several  staff  corps,  departments, 
and  bureaus  of  the  Army  sustain  the  twofold  relation 
of  chiefs  of  bureaus  of   the   War   Department   and 
chiefs  of  staff  to  the  General  of  the  Army.     They  act 
under  the  immediate  direction  and  control  of  the  Sec- 
retary of  War,  in  respect  to  all  matters  of  accounta- 
bility and  administration  not  immediately  connected 
with  military  operations;  they  report  directly  to  and 
act  under  the  immediate  orders  of  the  General  in  Chief 
in  all  matters  appertaining  to  the  command  of  the 
Army ;  they  are  the  repositories  of  the  laws  and  regu- 
lations for  the  government  of  the  military  service  and 
of  the  knowledge  which  experience  in  their  respective 
departments  affords ;  they  are  the  advisers  and  agents 
alike  of  the  Secretary  of  War  and  of  the  General  m 
Chief,  and  upon  the    proper  exercise  of  their  func- 
tions, in  this  twofold  relation,  depends   the  harmo- 
nious  working   of  the   complex   system  of  military 
administration  and  command." 

This  was  opposed  by  most  of  the  heads  of  the  staff 
departments,  and  was  defended  by  General  Schofield. 
A  part  of  the  discussion,  including  General  Schofield's 
remarks,  was  published  in  the  above-mentioned  report 
of  the  Joint  Committee  on  the  Reorganization  of  the 
Army  (of  which  General  Burnside  was  chairman),  as 
were  also  the  proposed  articles  which  contained  the 
disputed  propositions.     In   the  elaborate  bill   which 

•For  General  Schofield's  recollection  of  this  matter,  see  Appen- 
dix H. 


76 

was  reported  by  the  committee,  and  wliicli  was  in- 
tended, together  with  certain  unchanged  chapters  of 
the  Revised  Statutes,  to  be  a  "condensed  and  complete 
military  code,"  the  general  oflacers'  view  was  adopted. 
On  a  later  occasion  the  relation  of  the  staff  depart- 
ments to  the  General  in  Chief  was  again  the  subject  of 
consideration,  and  on  this  occasion  the  Secretary  of 
War  (Mr.  Lincoln)  gave  his  views  at  some  length  on 
the  other  side  of  the  question,  and  decided  it  accord- 
ingly.^ 


■^For  another  discussion  of  the  subject  of  the  command  of  the 
Army,  see  an  article  by  General  Schofield  in  the  Century  Maga- 
zine for  August,  1897.  See  also,  "The  Command  of  the  Army  " 
in  Fry's  Miscellanies. 

In  Scotfs  Military  Dictionary,  published  in  1864.  we  find  the 
following  statement:  "Administration  and  command  are  dis- 
tinct. Administration  is  controlled  by  the  head  of  an  executive 
department  of  the  government,  under  the  orders  of  the  Presi- 
dent, by  means  of  legally  appointed  administrative  agents,  with 
or  without  rank,  while  command,  or  the  discipline,  military  con- 
trol, and  direction  of  military  service  of  officers  and  soldiers  can 
be  legally  exercised  only  by  the  militarv  hierarchv,  at  the  head 
of  which  is  the  constitutional  Commander  in  Chief  of  the  Army 
Navy,  and  militia,  followed  by  the  commander  of  the  Army,  and 
other  military  grades  created  by  Congress."'  (Title  "Adminis- 
tration;" and  see  also  titles  "Regulations"  and  "Army  Regu- 
lations.") Colonel  Scott  did  not  recognize  the  constitutional 
power  of  the  President  to  make  Armv  regulations. 

In  England  the  powers  of  the  ' '  commander  in  chief  "  [/.  e  the 
commanding  general  of  the  army]  were  at  first  much  more  ex- 
tensive than  they  are  now ;  in  fact  the  King  deputed  to  him  all 
his  o\\m  military  powers  in  their  full  effect,  and  the  commander 
in  chief  exercised  the  functions  which  are  now  di^-ided  between 
the  secretary-at-war  and  the  commander  in  chief.  He  could 
frame  articles  of  war ;  he  could  order  out  militia :  he  granted  all 
commis-sions,  as  well  of  administrative  oflficers  as  of  "others ;  he 
issued  wan-ants  for  pajTuents ;  and  he  prepared  the  estimates  for 
the  establishment.  When  a  secretary-at-war  was  appointed  he 
was  made  subordinate  to  the  commander  in  chief ;  in  fact  the 
latter  was  independent  of  all  control  but  that  of  the  sovereign. 
and  was  the  sole  head  and  chief  of  all  militarv  organization,  ad- 
ministrative as  well  as  disciplinarv.  (Walton's  History  of  the 
British  Standing  Annv,  166U  to  1700.) 


77 


About  this  time,  namely,  August  15,  1876,  Congress 
passed  a  joint  resolution  to  the  following  effect: 

"Whereas  the  President  was,  by  an  act  of  Congress, 
approved  March  first,  eighteen  hundred  and  seventy- 
five,  authorized  to  make  and  publish  regulations  for 
the  government  of  the  Army,  in  accordance  with  exist- 
ing laws ;  and 

"Whereas  by  an  act  of  Congress,  approved  July 
twenty-four,  eighteen  hundred  and  seventy-six,  a  com- 
mission was  created  to  which  has  been  referred  the 
whole  subject-matter  of  reform  and  reorganization  of 
the  Army  of  the  United  States ;  therefore 

''Reaolved  hy  the  Senate  and  House  of  Representa- 
tives of  the  United  States  of  America  in  Congress 
assembled,  That  the  President  be  requested  to  post- 
pone all  action  in  connection  with  the  publication  of 
said  regulations  until  after  the  report  of  said  commis- 
sion is  received  and  acted  on  by  Congress  at  its  next 
session." 

On  the  7th  of  March,  1878,  a  bill  was  introduced  in 
the  Senate  to  provide  for  a  code  of  Army  Regulations. 
The  bill  having  been  referred  to  the  Secretary  of  War 
for  such  suggestions  as  he  might  deem  proper,  Secre- 
tary of  War  McCrary  said  that  he  adhered  to  the 
opinion  that  the  President  should  be  authorized  to 
make  and  publish  regulations  for  the  government  of 
the  Army,  but  if  it  be  required  that  such  regulations 
should  be  submitted  to  Congress,  to  be  by  that  body 
approved  before  being  issued,  he  recommended  early 
action.     A  copy  of  Secretary  McCrary's  remarks  on 
the  same  subject,  in  his  annual  report  for  1877,  will 
be  found  in  Appendix  I. 


78 

On  the  15th  of  August,  1878,  the  clerk  of  the  Com- 
mittee on  Military  Affairs  of  the  Senate  transmitted 
to  the  Secretary  of  War  a  copy  of  a  Senate  resolution 
of  June  18th,  authorizing  a  subcommittee,  for  the  pur- 
pose of  considering  the  revision  of  the  Army  Regula- 
tions, and  stated  that  he  had  been  directed  to  cooper- 
ate with  the  War  Dej)artment  in  every  possible  way 
and  to  report  to  the  committee  the  revision  of  the 
regulations  made  under  the  direction  of  the  Secretary 
of  War.  But  by  act  of  June  23,  1879  (21  Stats.,  34), 
Congress  disposed  of  the  whole  matter  by  authorizing 
and  directing  the  Secretary  of  War  to  cause  all  the 
regulations  of  the  Army  and  general  orders  then  in 
force  to  be  codified  and  published  to  the  Army, 

The  Regulations  of  1881  were  the  outcome  of  this 
legislation.  In  July,  1880,  a  board  was  convened  for 
the  purpose  of  examining  and  reporting  upon  the  codi- 
fication of  the  regulations  made  pursuant  to  its  require- 
ments. It  consisted  of  Generals  McDowell  and  Meigs, 
Colonels  Sackett,  Hazen,  and  Upton,  with  Maj.  A, 
H.  Nickerson  as  recorder.  General  McDowell  was, 
however,  almost  immediately  relieved  and  General 
Auger  substituted  in  his  stead.  The  board  received 
the  following  instructions,  communicated  to  them  by 
the  Adjutant  General: 

"In  submitting  the  accompanying  codification  of 
the  laws,  regulations,  and  orders  made  in  pursuance 
of  the  requirements  of  section  2  of  an  act  approved 
June  23,  1879,  the  Secretary  of  War  instructs  me  to 
say  that  he  desires  the  board  of  officers  to  examine 
the  codification  to  ascertain  whether  its  parts  are 
consistently  arranged ;  whether  there  are  inaccuracies 
resulting  from  misinterpretation;  whether  there  are 


70 


any  repetitions  or  instances  where  tlie  pliraseology 
may  not  clearly  express  the  exact  meaning,  and  that 
there  are  no  contradictions.  Wherever  these  defects 
are  discovered  it  will  be  the  duty  of  the  board  to  pro- 
pose a  substitute  for  the  defective  paragraph  and  sub- 
mit it  in  its  report  for  the  Secretary's  action. 

"It  is  no  part  of  the  functions  of  the  board  to  make 
regulations,  but  simply  by  a  careful  examination  to 
detect  errors  and  report  what  changes  may  be  consid- 
ered requisite  for  a  proper  fulfillment  of  the  law  under 
which  the  codification  was  made. 

"It  is  the  Secretary's  desire  that  when  these  regula- 
tions are  published  to  the  Army  they  shall  form  as  per- 
fect a  code  as  possible  and  be  so  free  from  errors  as 
not  to  require  correction  or  immediate  modification." 
On  the  13th  of  September  the  board  was  dissolved. 
In  a  note  at  the  beginning  of  the  Regulations  of 
1881  it  is  stated  that  "the  work  of  codification  was 
confided  to  the  Adjutant  General  of  the  Army,"  and, 
in  fact,  the  codification  submitted  to  the  board  by  the 
Adjutant  General  (Drum)  was  prepared  by  Adjutant 
General  Townsend.    A  characteristic  of  these  regula- 
tions, and  one  which  makes  them  still  valuable,  is  that 
they  give  the  source  and  authority  of  the  individual 
regulations.     An   "Abridged  Edition"  of  them  was 

also  issued. 

After  this  no  revision  of  the  Regulations  appears  to 
have  been  undertaken  until  December,  1886,  when  a 
board  was  appointed,  consisting  of  General  Bene't, 
Colonel  (now  General)  Otis,  Lieut.  Col.  R.  N.  Scott, 
and  Lieut,  (now  Lieut.  Col.)  George  B.  Davis,  "  for 
the  purpose  of  revising  and  condensing  the  Regula- 
tions of  the  Army  and  preparing  a  new  edition  of  the 


.80 

same."  Colonel  Scott  died  two  months  later.  The 
work  of  this  board  finally  took  the  form  of  the  Regula- 
tions of  1889. 

There  remains  to  be  considered  only  the  Regulations 
of  1895.  General  Kelton,  in  December,  1891,  called 
attention  to  the  necessity  of  a  revision,  and  in  Febru- 
ary, 1892,  General  Schofield  wrote  as  follows: 

"The  need  has  become  urgent  of  a  new  edition  of 
the  Revised  Regulations.  The  need  is  not  so  much 
for  any  revision  of  the  existing  regulations  as  for  a 
new  publication  of  the  regulations  as  they  now  exist ; 
that  is  to  say,  the  Regulations  of  1889  as  revised  since 
their  publication.  That  edition  having  been  very 
hastily  published,  and  hence  very  imperfect,  it  has 
been  amended  in  so  many  details  and  in  some  cas^ 
frequently,  that  a  new  publication  of  the  regulations 
as  they  exist  to-day  is  of  vital  importance. 

"  The  revision  that  has  been  going  on  during  the 
last  three  years,  or  nearly  three  years,  has  involved 
very  great  labor  and  very  careful  consideration  of  the 
several  subjects  on  the  part  of  many  officers,  includ- 
ing the  chiefs  of  bureaus,  the  Commanding  General, 
and  the  Secretary  of  War.  _  So  much  of  the  regula- 
tions as  have  been  so  revised  ought,  in  my  judgment, 
not  to  be  changed  without  cogent  reasons. 

"The  revision  of  regulations  is  a  very  delicate  work, 
and  in  past  experience  has  generally  resulted  in  an 
exceedingly  imperfect  code,  requiring  numerous 
amendments.  Regulations  are  a  matter  of  gradual 
growth,  and  should  be  preserved  as  a  rule  in  the  form 
which  has  resulted  from  such  growth.  In  some  cases, 
doubtless,  obsolete  regulations  may  be  eliminated  and 
others  may  be  somewhat  simplified,  and  some  which 


81 


were  carelessly  omitted  in  the  last  revision  should  be 
restored  The  officer  charged  with  the  revision  should 
be  instructed  to  consider  very  carefully  all  such  ques- 
tions, consult  the  chiefs  of  bureaus  of  the  War  De- 
partment, and  after  obtaining  concurrent  views  upon 
each  question,  submit  it  for  the  consideration  of  the 
Commanding  General,  and  finally  for  the  approval  ot 
the  Secretary  of  War,  before  incorporating  it  m  the 

revised  edition. 

' '  In  this  way,  as  suggested  by  the  Adjutant  General, 

'  a  satisfactory  work  may  be  accomplished,  ready  f or 

publication    as    soon  as  it   is   completed    and    duly 

indexed."  ^  r^  ^    i 

This  revision  passed  through  the  hands  of  Col.  (now 
Adjutant  General)  H.  C.  Corbin,  Maj.  (now  Lieut.  Col  ) 
J    C   Gilmore,  and  Maj.  (now  Lieut.  Col.)  J.  B.  Bab- 
cock,  constituting  a  board,  and  afterwards  through 
the  hands  of  the  Adjutant  General  and  the  Major 
General  Commanding  the  Army.     Gen.  E.  S.  Otis  also 
went  over  the  work.     But   the   preparation  of   this 
revision  was  finally  in  charge  of  the  Assistant  Secre- 
tary of  War,  Maj.  (now Lieut.  Col.)  George  W.  Davis, 
and  Capt.  J.  T.  French.     One  of  its  distinguishing 
features  is  that  the  regulations  which  relate  more  par- 
ticularly to  the  management  of  the  business  of  the  staft 
departments,  and  do  not  affect  the  Army  at  large,  are 
omitted  from  the  general  regulations  and  embodied  m 
separate  manuals.     Necessarily,  however,  these  man- 
uals cover  a  wider  field  than  this  would   indicate 
The  o-eneral  Regulations,  with  their  accompaniment  ot 
manuals,  may  be  regarded  as  forming  the  Regulations 
of    1895.     One   of    these   manuals— the   Manual   tor 
Courts-Martial— is  not,  indeed,  a  staff  manual  at  all. 


131! 


82 


but  is  a  general  system  of  rules  for  the  administration 
of  military  justice.  It  is  the  first  of  its  kind,  promul- 
gated by  the  War  Dej^artment,  and  is  an  outgrowth 
and  enlargement  of  the  directions  on  the  subject  which 
it  was  formerly  the  practice  to  issue  from  the  head- 
quarters of  military  departments.  Regulations,  ap- 
proved by  the  Secretary  of  War,  had,  however,  before 
this  been  issued  by  several  of  the  staff  departments  for 
their  own  government. 

The  regulations   for   the   United    States    Military  • 
Academy  also  emanate  from  the  President's  consti- 
tutional power.' 


'  There  can  be  no  doubt,  however,  that,  within  limits,  the  Super- 
intendent of  the  United  States  Military  Academy,  the  same  as 
any  olficer  in  control  of  a  piiblic  institution  peopled  vnih  per- 
sons whose  good  conduct  is  intrusted  to  his  charge,  may  also  lay 
do\Aai  riiles  or  regulations.  He  does  in  fact  exercise  this  power 
in  issuing  certain  orders.  A  distinction  has,  indeed,  been  made 
between  regulations  and  orders,  but  it  can  not  be  said  that  there 
is  any  essential  difference  between  regulations  and  general  or- 
ders laying  down  general  rules  of  action. 

As  a  good  illustration  of  this  power,  as  vested  in  superintend- 
ents of  institutions  of  this  character,  we  may  take  the  various 
Soldiers'  Homes.  For  these  certain  regulations  are  prescribed  by 
statute  and  others  by  their  boards  of  managers,  necessarily,  how- 
ever, leaving  a  very  considerable  residue  of  matters,  princij^ally 
relating  to  discipline,  to  be  regulated  by  the  governors  of  the 
institutions.  It  may,  of  course,  sometimes  be  difficult  to  decide 
what  the  limit  of  the  power  is,  biit  that  the  power  exists  seems 
clear.  Without  it  public  institutions  of  this  kind  could  not  be 
controlled,  and  therefore  could  not  be  managed  for  the  purposes 
for  which  they  are  established. 

Commanding  officers  of  military  posts  have  this  power  in  a 
marked  degree — limited,  it  is  true,  in  their  case  also,  by  statute 
and  regulation  of  higher  authority,  but,  subject  to  these,  having 
a  distinct,  necessary,  and  unquestioned  Jiirisdiction.  In  this 
case,  however,  as  also  in  the  case  of  the  Superintendent  of  the 
Military  Academy,  the  power  is  a  part  of  an  independent  system, 
namely,  the  military  system.  But  it  is  the  same  kind  of  power. 
And  it  is  the  same  kind  of  power  that  is  exercised  by  the  school 
teacher  in  the  maintenance  of  the  discipline  of  his  school. 
' '  When  no  rules  and  regulations  have  been  prescribed  by  the 


83 

board,  the  teacher  is  authorized  to  make  such  reasonable  rules  as 
sliall  best  proiuote  the  welfare  of  his  school  and  secure  order  and 
discipline  therein.  And  even  where  rnles  have  been  i)rescribed 
by  the  board,  the  teacher  may,  unless  expressly  prohibited,  make 
such  additional  rules  and  requirements  as  special  cases  or  sudden 
emergencies  may  render  necessary."  (Meachem  on  Public  Offi- 
cers, 728. )  And  see  American  and  English  Encyclopedia  of  Law, 
title,  "Master  and  Servant,"  vol.  14,  p.  858. 

Ship  cajitains  possess  this  authority  in  a  peculiar  degree. 
Justice  Story,  discussing  the  relation  of  the  officers  of  a  ship  to 
the  seamen,  said : 

• '  The  learned  counsel  for  the  defendant  has  asked  the  court  to 
direct  the  jury,  that  the  officers  of  the  ship  are  clothed,  not 
merely  with  a  civil,  but  with  a  military  power,  over  the  seamen 
on  board.  In  my  judgment,  that  is  not  the  true  relation  of  the 
parties.  The  authority  to  compel  obedience,  and  to  inflict  pun- 
ishment, is,  indeed,  of  a  summary  character,  but,  in  no  just  sense, 
of  a  military  character.  It  is  entirely  civil ;  and  far  more  re- 
sembles the  aiithority  of  a  parent  over  his  children,  or  rather, 
that  of  a  master  over  his  servant  or  apprentice,  than  that  of  a 
commander  over  his  soldiers.  Properly  speaking,  however,  the 
authority  of  the  officers  over  the  seamen  of  a  ship,  is  of  a  peciiliar 
character,  and  drawn  from  the  usages,  and  customs,  and  necessi- 
ties of  the-  maritime  naval  service,  and  founded  upon  principles 
applicable  to  that  relation,  which  is  full  of  difficulties  and  perils, 
and  rec^uires  extraordinary  restraints,  and  extraordinary  disci- 
pline, and  extraordinary  promptitude  and  obedience  to  orders. " 
(United  States  v.  Hunt,  26  Fed.  Cases,  435.) 

Commanders  of  naval  vessels  possess  the  power  also,  and  being 
officers  in  command  of  public  armed  ships  they  have  even  greater 
discretion.     (Wilkes  r.  Dinsman,  7  How. ,  89. ) 

In  a  greater  or  less  degree,  according  to  the  conditions,  the 
power  to  make  rules  of  action  or  regulations  must  exist  wherever 
there  are  rulers  and  ruled.  In  military  commands  the  strictest 
discipline  is  necessary,  and  for  the  purpose  of  maintaining  this 
discipline  a  military  jurisdiction,  or  military  law,  exists,  which 
is  quite  independent  and  free  from  interference  within  its  own 
special  scope.  But  in  a  general  sense  it  is  certainly  true  that 
wherever  the  relation  of  ruler  and  ruled  is  legally  established 
there  must  be  a  power  of  control,  in  which,  subj'ect  to  such  limi- 
tations as  may  legally  be  imposed,  is  included  the  power  to  make 
regulations. 


CHAPTER  V. 


THE  INTERPRETATION  AND  CONSTRUCTION  OF 

REGULATIONS. 

"  Interpretation  is  the  art  of  finding  ont  the  true 
sense  of  any  form  of  words;  that  is,  the  sense  which 
their  author  intended  to  convey,  and  of  enabling  oth- 
ers to  derive  from  them  the  same  idea  which  the  author 
intended  to  convey."  "  Construction  is  the  drawing  of 
conclusions  respecting  subjects  that  lie  beyond  the 
direct  expression  of  the  text,  from  elements  known 
from  and  given  in  the  text— conclusions  which  are  m 
the  spirit,  though  not  within  the  letter^^jTthe  text. " ' 

1  Legal  and  Political  Hermeneutics,  by  Francis  Lieber,  pp. 

^^'"itterpretation  differs  from  constrnction  in  that  the  former 
is  the  art  of  finding  oiat  the  true  sense  of  any  form  of  words 
tliat  is  the  sense  which  their  anthor  intended  to  convey ;  and  of 
enabling  others  to  derive  from  them  the  same  ide^  ^^^^.^t 
aShor  fntended  to  convey.     Consti^iiction  o^^^Jl^^,  "^l^^r  ^^.^"^^^^^^^ 
the  drawing  of  conclusions,  respectmg  subjects  that  lie  beyond 
t  e  dhelt  expressions  of  the  text,  from  elements  known  from  and 
given  in  the  text;  conclusions  which  are  in  the  BPi"t,  though 
S  within  the  letter  of  the  text.     Interpretation  only  takes  place 
S  the  text  conveys  some  meaning  or  other.     But  coiistruction  is 
resorted  to  when,  in  comparing  two  different  writmgs  of  the 
S^e- fndividual,  m-  two  different  enactments  by  the  same  legis- 
iXe  body  there  is  found  contradiction  where  there  was  evi- 
dentlv  no  intention  of    such  contradiction  one  of   another,  or 
wherl  i?Lpi  ens  that  part  of  a  writing  or  declaration  contradic  s 
S  rest      When  this  is  the  case,  and  the  nature  of  the  document 
or  declaration,  or  whatever  else  it  may  be  is  f  ^^\^.X\  oi- SS 
us  to  consider  the  whole  as  bemg  invalidated  by  a  pai  tial  oi  other 
contradiction,  then  resort  must  be  had  to  construction;  so,  too 
if  re'  uired  to  act  in  cases  which  have  not  been  foreseen  by  the 
framers  of  those  rules,  by  which  we  are  nevertheless  obliged,  toi 
;re  Wilding  reason,  faiffully  to  ^"eg-late  as  well  as  w^^^^^^ 
action  respecting  the  unforeseen  case.       (Cooley,  Constitutional 
Limit0.tions,  51.) 


86 

' '  There  can  be  no  sound  interpretation  witliout  good 
faith,  and  common  sense.  The  object  of  all  interpre- 
tation and  constrnction  is  to  ascertain  the  intention  of 
the  authors,  even  so  far  as  to  control  the  literal  signifi- 
cation of  the  words ;  for  verba  ita  sunt  inieUigenda  id 
res  magis  valeat  quam  pereat.  Words  are,  therefore, 
to  be  taken  as  those  who  used  them  intended,  which 
must  be  presumed  to  be  in  their  popular  and  ordinary 
signification,  unless  there  is  some  good  reason  for  sup- 
posing otherwise,  as  where  technical  terms  are  used; 
quoties  in  verba  nulla  est  ambiguitas,  ibi  nulla  exposi- 
tio  contra  verba  fienda  est. " ' 

The  underlying  principles  of  true  interpretation  and 
construction  apply  to  all  language,  in  whatever  form 
it  may  be  used,  although  there  are  principles  applica- 
ble only  to  its  special  uses,  as  in  constitutions,  statutes, 
executive  regulations,  or  contracts.  The  rules  for  the 
interpretation  and  construction  of  executive  regula- 
tions closely  resemble  those  for  the  interpretation  and 
construction  of  statutes.'' 

1.  The  first  practical  question  which  suggests  itself 
is :  Does  each  new  edition  of  the  Army  Regulations 
entirely  displace  the  preceding  one,  both  as  to  the  sub- 
jects treated  of  and  those  omitted  ? 

It  is  a  principle  of  statutory  construction  that  when 
the  legislature  makes  a  revision  of  a  statute,  and  frames 
a  new  statute  upon  the  subject-matter,  and  from  the 
framework  of  the  act  it  is  apparent  that  the  legisla- 
ture designed  a  complete  scheme  for  the  matter,  it  is 
a  legislative  declaration  that  whatever  is  embraced  in 

'Francis  Lieber:  subject,    "Interpretation,"   Bouvier's  Law 
Dictionary. 
^  Devereux,  148. 


the  new  law  shall  prevail,  and  whatever  is  exckided 
is  discarded.'     And  this  principle  is  applied  to  codifi- 
cations.    The  general  rule  seems  to  be  that  statutes 
and  parts  of  statutes  omitted  from  a  revision  are  to 
be  considered  as  annulled,  and  are  not  to  be  revived 
by  construction.^     The  practice  with  reference  to  the 
different  editions  of  Army  Regulations  has  conformed 
to  this  principle,  each  new  edition  being  regarded  as 
intended   to  be  a  substitute  for  the  preceding   one, 
and  to  displace  it,  both  as  to  matter  included  in  both 
editions,  and  matter  included  in  the  earlier  but  not 
in  the  later  edition.     It  is  the  substitution  of  one  com- 
pilation or  system  for  another.' 

2.  What  effect  has  such  a  new  edition  on  existing 
orders  relating  to  subjects  covered  by  it,  and  on  orders 
prescribing  regulations  not  embodied  in  it  ? 

The  former,  it  would  seem,  are  displaced  by  the  new 
code,  but  the  latter  not;  it  being  the  understanding- 
subject  to  which  the  code  is  made— that  it  does  not 
affect  orders  relating  to  subjects  not  embraced  m  it, 
nor  in  the  preceding  code.  Such  a  question,  for  exam- 
ple is  understood  to  have  once  arisen  with  reference 
to  General  Orders  No.  100,  of  18G3  (Instructions  for 
the  Government  of  the  Armies  of  the  United  States  in 
the  Field),  and  to  have  been  decided  in  favor  of  the 
permanencv  of  these  regulations. 

The  non-user  of  a  statute  does  not  repeal  it,  although 
it  has  been  said  that,  on  the  principle  that  custom  is 
of  o-reat  force  in  the  construction  of  statutes,  long  and 


1  Bracken  r.  Smith,  39  N.  J.  Eq.,  169. 

■^  EBcllich,  Interpretation  of  Statutes,  sec.  202. 


ni  Opin.  Atty.  Gen.,  463. 


88 

uniform  disuse  might  in  some  cases  amount  to  a  prac- 
tical repeal.  This  would  seem  to  apply  even  more 
strongly  to  regulations,  which  are  made  and  executed 
by  the  same  authority.  The  circumstances  may  be 
such  that  the  long-continued  disuse  of  a  regulation 
would  be  significant  of  the  understanding  of  the  exec- 
utive authority  that  it  has  become  obsolete  and 
inoperative. 

3.  The  effect  of  the  revocation  of  an  army  regula- 
tion by  which  a  preceding  regulation  was  revoked. 

The  principles  regulating  this  differ  somewhat  from 
those  of  statutory  construction.  The  latter  have  been 
thus  stated : 

' '  Where  an  act  is  repealed,  and  the  repealing  enact- 
ment is  repealed  by  another,  which  manifests  no 
intention  that  the  first  shall  continue  repealed,  the 
common-law  rule  was  (and  in  the  absence  of  any  stat- 
utory declaration  to  the  contrary,  the  general  rule  still 
is),  that  the  repeal  of  the  second  act  revives  the  first; 
and  revives  it,  too,  ab  initio,  and  not  merely  from  the 
passing  of  the  reviving  act.  (The  revival  of  the  orig- 
inal statute  is  also,  in  general,  the  eft'ect  of  the  expira- 
tion of  a  repealing  statute  by  its  own  limitation,  or  of 
the  suspension  of  the  repealing  act ;  and  it  is  immate- 
rial whether  the  repeal  of  the  rej^ealing  act  be  express 
or  by  imj)lication.  Moreover,  it  extends,  not  only  to 
statutes,  but  to  the  common  law;  so  that,  where  an 
act  superseding  in  any  particular  the  common-law 
rule  previously  applicable  is  repealed,  that  rule  io  held 
to  be  revived.  The  doctrine  stated  is,  however,  not 
without  exceptions,  founded  in  the  necessity  of  giving 
effect  to  the  legislative  intent.     Thus,  it  is  said  that 


89 

an  absolute  affirmative  repeal  of  a  statute  by  a  subse- 
quent one  will  survive  the  expiration  of  the  latter  by 
its  own  limitation;  that  the  repeal  of  a  statute  which 
was  a  revision  of,  and  which  was  intended  as  a  sub- 
stitute for,  a  former  act  to  the  same  effect,  will  not 
revive  the  latter,  such  a  result  being  manifestly  con- 
trary to  the  intent  of  the  legislature;  and  that,  for 
the  same  reason,  the  repeal  of  an  act  "amending 
another  'so  as  to  read'  in  a  given  manner,  which  oper- 
ates as  a  total  merger  of  the  amended  act  in  the  amend- 
ing one,  cannot  revive  the  original  statute.")  (End- 
lich,  Interpretation  of  Statutes,  sec.  475.) 

But  with  reference  to  Army  regulations  it  would 
seem  to  be  an  established  usage  that  the  revocation  of 
a  regulation  or  an  order,  by  which  a  preceding  regu- 
lation or  order  was  revoked,  will  not  revive  these, 
unless  there  be  some  express  evidence  of  such  an  inten- 
tion.    This  usage  is  no  doubt  founded  on  the  necessity 

of  certainty. 

The  revocation  of  a  regulation  which  is  simply 
declaratory  of  an  established  custom  of  the  service 
would,  however,  in  the  absence  of  words  indicating  a 
different  intention,  doubtless  be  held  to  leave  the 
custom  in  force.  For  example,  a  regulation  of  the 
Manual  for  Courts-Martial,  which  constitutes  a  part  of 
the  Army  Regulations,  says  that  the  judge  advocate  of 
a  court-martial  swears  the  witnesses.  This  is  declara- 
tory of  the  custom  of  the  service,  for  the  ninety-second 
article  of  war,  which  prescribes  the  oath  to  be  admin- 
istered to  witnesses,  does  not  say  by  whom  it  shall  be 
administered.  Undoul)tedly,  the  revocation  of  the 
regulation  would  leave  the  custom  of  the  service  m 
force. 


90 

4,  Expressio  unins  est  exclusio  alterius.  This  rule 
applies  in  the  construction  of  the  Army  Regulations, 
as  well  as  in  the  construction  of  statutes.  Where,  for 
example,  certain  allowances  are  specified,  other  allow- 
ances for  the  same  thing  are  excluded.  Thus,  it  has 
been  held  by  the  War  Department  that  the  very  fact 
that  the  Army  Regulations  do  not  provide  for  certain 
allowances  claimed,  raises  a  presumption  that  it  was 
not  the  intention,  when  Army  Regulations  were  jjub- 
lished  and  promulgated  by  the  direction  of  the  Secre- 
tary of  War,  to  make  such  allowances.' 

But,  apparently,  even  in  the  matter  of  allowances, 
a  regulation,  which  has  not  been  approved  by  Con- 
gress and  is  not  made  pursuant  to  an  act  of  Congress, 
may  be  modified  in  a  particular  case,  or  the  case 
may  be  taken  out  of  its  operation.  Thus,  it  was  held 
by  the  Assistant  Comptroller  of  the  Treasury  (Mr. 
Bowers),  with  reference  to  the  regulation  prohibiting 
the  reimbursement  of  Army  officers  who,  when  chang- 
ing station,  ship  and  pay  for  the  transportation  of 
their  baggage,  that  "  as  the  regulation  Avas  made  by 
the  Secretary  of  War,  that  officer  has  the  power  to 
amend  it,  or  to  waive  its  provisions  in  particular 
cases,  but  so  long  as  the  regulation  stands  as  it  does,  no 
reimbursement  can  rightfully  be  made  without  the 
specific  waiver  of  the  regulation  by  the  Secretary  of 
War,  when  shipments  are  made  by  officers. "  "^  *  It  is 
to  be  observed,  however,  that  the  Assistant  Comp- 
troller .  did  not  here  make  any  distinction  between 
regulations  made  pursuant  to,  or  in  execution  of,  a 

'  Claim  of  Captain  Morton. 
«3  Dec.  Comp.  Treas.,  305. 


91 

statute — in  this  case  an  appropriation  act — and  other 
regulations. 

5.  In  construing  Army  regulations  it  is  often 
necessary  to  consider  to  wliich  of  the  classes  named  at 
the  beginning  of  this  work  they  belong;  i.  e.,  those 
which  have  been  approved  and  adoj)ted  by  Congress ; 
those  made  pursuant  to,  or  in  execution  of,  a  statute ; 
and  those  made  by  the  President  as  commander-in- 
chief,  but  not  falling  under  either  of  the  other  heads. 

(a)  Those  which  have  been  approved  and  adopted 
by  Congress.  These  can  not  be  modified  or  amended 
until  the  Congressional  sanction  has  been  removed. 
(See  ante.) 

(h)  Those  made  pursuant  to,  or  in  execution  of,. a 
statute.  These  may  be  modified  or  amended,  but  indi- 
vidual exceptions  to  them  can  not  be  made.    (See  ante.) 

(c)  Those  made  by  the  President  as  commander-in- 
chief,  and  not  falling  under  (a)  or  {h).  These  may 
be  modified,  and  exceptions  to  them  may  be  made. 
(See  ante.) 

We  are  ordinarily  in  the  habit  of  regarding  the 
different  paragraphs  of  the  Army  Regulations  as  on 
the  same  footing  in  this  resj^ect,  that  is  to  say,  as 
having  the  same  degree  of  immutability ;  but  this  is, 
for  the  reason  stated,  believed  to  be  a  mistake  likely 
to  lead  to  faulty  action.  When  we  are  considering  the 
power  of  the  President  to  modify,  or  make  an  excep- 
tion to,  a  regulation,  we  ought  to  know  to  which  of 
the  above  classes  it  belongs. 

G.  Authentic  interpretation  and  construction. 

"  Authentic  interpretation  is  called  that  which  pro- 
ceeds from  the  author  or  utterer  of  the  text  himself ; 
properly  speaking,  therefore,  it  is  no  interpretation. 


92 

but  a  declaration.  If  a  legislative  body,  or  monarch, 
give  an  interpretation,  it  is  called  authentic,  though 
the  same  individuals  who  issued  the  law  to  be  inter- 
preted may  not  give  the  interpretation ;  because  the 
successive  assemblies  or  monarchs  are  considered  as 
one  and  the  same,  making  the  law  and  giving  the 
interpretation  in  their  representative,  and  not  in  their 
personal  characters.  Authentic  interpretation,  there- 
fore, need  not  always  be  correct,  though  it  has,  if 
formally  given,  binding  power.  Still  it  may  be  re- 
versed by  a  subsequent  law."  ' 

In  1861  and  1862  the  pay  of  officers  of  the  Army  was 
made  up  of  pay  proper  and  certain  allowances,  one  of 
which  was  for  a  certain  number  of  servants  at  the 
rate  of  pay,  etc.,  of  private  soldiers.  In  1861  the  pay 
of  private  soldiers  was  increased,  and  in  1862  it  was 
enacted  that  the  legislation  making  this  increase 
"shall  not  be  so  construed,  after  the  passage  of  this 
act,  as  to  increase  the  emoluments  of  the  commissioned 
officers  of  the  Army. "  This  was  an  instance  of  authen- 
tic legislative  construction.  Executive  construction 
of  regulations  is  much  more  common,  and  is  not  lim- 
ited to  cases  arising  subsequently  to  the  construction, 
but,  on  the  contrary,  is  applied  to  existing  cases. 
Because  of  this,  and  because  there  is  in  general  no 
remedy  in  the  nature  of  an  appeal,  it  is  incumbent 
on  the  authority  construing  the  regulation  to  take 
great  care  to  construe  correctly. 

7.  Army  regulations,  like  statutes,  are  not  to  be 
given  a  retroactive  effect  unless  their  language  clearly 
requires  it.  (United  States  v.  Webster,  28  Fed.  Cases, 
509;  United  States  v.  Davis,  132  U.  S.,  334;  Dig.  Opin. 

'  Lieber's  Hermeneutics,  p.  62. 


93 

Judge-Advocato  General,  168.)  We  must,  however, 
make  an  exception  to  this  rule  in  favor  of  curative 
and  declaratory  regulations,  the  former  being  intended 
to  cure  matters  of  form,  and  the  latter  being  explana- 
tory of  other  regulations.  But  the  presumption  always 
is  that  the  intention  of  the  regulation  is  to  lay  down 
a  rule  for  the  future.  If  the  intention  is  to  give  it  a 
retroactive  effect,  it  must  clearly  appear.  This  is 
applying  to  executive  regulations  a  familiar  rule  of 
statutory  construction. 

"  It  is  a  proposition  too  well  settled  by  authority  to 
admit  of  dispute,  or  call  for  extended  discussion,  that 
curative  acts,  especially  upon  matters  of  public  con- 
cern, are  to  be  allowed  the  retroactive  effect  they  are 
clearly  intended  to  have,  even  though  vested  rights 
and  decisions  of  courts  be  set  aside  by  them,  so  long 
as  they  do  not  undertake  to  infuse  life  into  proceed- 
ings utterly  void  for  want  of  jurisdiction,  and  do  not 
contravene  the  constitutional  provisions  against  laws 
impairing  the  obligation  of  contracts  and  ex  post  facto 
laws,  or  any  other  provision  of  the  particular  consti- 
tution to  which  the  legislature  passing  them  may  be 
subject.     The  purpose  of  these  sections  is  merely  to 
point  out  the  effect,  upon  the  construction  of  such, 
and  acts  declaratory  of  former  statutes  or  rules  of 
law,  of  the  presumption  against  an  intention  to  legis- 
late retrospectively,  and,  possibly,  of  a  constitutional 
prohibition  against  retrospective  operation  in  the  par- 
ticular class  of  cases  to  which  the  act  is  to  be  applied, 
coupled  with  the  necessity  of  giving,  if  practicable, 
a  lawful  and  reasonable  operation  to  the  expression 
of  the  legislative  will."     (Endlich,  Interpretation  of 
Statutes,  sec.  291.) 


94 

These  principles  apply,  mutatis  mutandis,  to  execu- 
tive regulations.  But  it  would  be  a  violation  of  prin- 
ciples of  a  mucli  liiglier  degree  of  obligation,  if  they 
were  to  be  resorted  to  in  disregard  of  those  mentioned 
in  rule  4  and  at  the  beginning  of  these  remarks.  Such 
a  violation  could  not,  indeed,  be  properly  regarded  as 
curative  or  declaratory. 

8.  The  Army  Regulations  are,  as  the  order  of  pro- 
mulgation by  the  Secretary  of  War  announces,  "Reg- 
ulations for  the  Army."  Their  provisions  would  not 
relate  to  the  business  of  the  War  Department,  unless 
it  should  expressly  appear  that  such  is  the  intention. 
Thus,  it  was  held  that  paragraph  670,  Army  Regula- 
tions, only  relates  to  the  public  property  in  the  custody 
of  the  military  establishment,  and  does  not  relate  to  the 
property  held  by  the  War  Department  proper,  which 
is  a  civil  institution,  (piite  distinct  from  the  military, 
and  to  which,  in  the  absence  of  express  words  to  that 
effect,  the  regulation  mentioned  does  not  apply.  (Opin. 
Judge-Advocate  General,  January  10,  1898.) 

9.  Executive  regulations  are  not  in  general  imj)era- 
tive,  so  as  to  render  actually  invalid  acts  provided  for 
by  the  regulations,  but  done  without  a  compliance 
witli  their  requirements.  They  are  in  general  direc- 
tory only.  In  this  respect  they  resemble  statutory 
rules  for  the  performance  of  public  duties.  To  affect 
with  invalidity  acts  done  in  neglect  of  such  rules 
would  work  serious  general  inconvenience  or  injustice 
to  persons  who  have  no  control  over  those  intrusted 
with  the  duty,  without  promoting  the  essential  aims 
of  the  legislature.  In  such  case,  they  are  said  not  to 
be  of  the  essence,  or  substance  of  the  thing  required ; 
and,  dejjending  upon  this  quality  of  not  being  of  the 


95 

essence  or  substance  of  the  thing  required,  conii)liance 
being  rather  a  matter  of  convenience,  and  the  direc- 
tion being  given  with  a  view  simply  to  proper,  orderly, 
and  prompt  conduct  of  business,  they  seem  to  be  gen- 
erally understood  as  mere  instructions  for  the  guid- 
ance and  government  of  those  on  whom  the  duty  is 
imposed,  or,  in  other  words,  as  directory  only.  (End- 
lich  on  Interpretation  of  Statutes,  sec.  436.) 

In  general,  statutes  directing  the  mode  of  proceed- 
ing by  public  officers  are  deemed  advisory,  and  strict 
compliance  with  their  detailed  provisions  is  not  indis- 
pensable to  the  validity  of  the  proceedings  themselves, 
unless  a  contrary  intention  can  be  clearly  gathered 
from  the  statute  construed  in  the  light  of  other  rules 
of  interpretation.     {Id.,  sec.  437.) 

A  provision  in  a  statute,  rule  of  procedure,  or  the 
like,  is  said  to  be  directory  when  it  is  to  be  considered 
as  a  mere  direction  or  instruction  of  no  obligatory 
force,  and  involving  no  invalidating  consequence  for 
its  disregard,  as  opposed  to  an  imperative  or  manda- 
tory provision  which  must  be  followed.  The  general 
rule  is  that  the  prescriptions  of  a  statute  relating  to 
the  performance  of  a  public  duty  are  so  far  directory 
that,  though  neglect  of  them  may  be  punishable,  yet 
it  does  not  affect  the  validity  of  the  acts  done  under 
them,  as  in  the  case  of  a  statute  requiring  an  officer 
to  prepare  and  deliver  a  document  to  another  officer 
on  or  before  a  certain  day.     (Black's  Law  Dictionary.) 

Many  statutory  requisitions,  intended  for  the  guid- 
ance of  officers  in  the  conduct  of  business,  do  not  limit 
their  power  or  render  its  exercise  in  disregard  of 
the  requirements  ineffectual.  Such  are  regulations 
designed   to  secure   order,  system,    and   dispatch   in 


96 

proceedings.      Provisions   of   this   character   are   not 
mandatory  unless  accompanied  by  negative  words  im- 
porting that  the  acts  shall  not  be  done  in  any  other 
manner  or  time  than  that  designated.     (Anderson's' 
Law  Dictionarv.) 

As  with  statutes,  so  with  executive  regulations, 
when  it  is  the  intention  that  acts  shall  be  invalid 
unless  done  in  the  way  prescribed,  and  therefore  the 
way  prescribed  is  of  the  essence  of  the  regulation,  the 
regulation  is  imperative,  and  not  merely  directory. 

These  rules  have  been  applied  in  the  construction 
of  Army  regulations.  So  held  with  reference  to  para- 
graph 746  of  the  Army  Regulations  of  1889,  forbidding 
purchases  of  supplies  to  be  made  from,  or  contracts 
for  supplies  or  services  to  be  made  with,  persons  in 
the  military  service,  that  it  was  directory  merely,  and 
that  a  contract  might  still  be  legal  and  binding,  though 
entered  into  in  contravention  of  its  terms.  (Dig.  Opin. 
Judge- Advocate  General,  296.)  But  a  regulation  which 
has  been  adopted  by  Congress,  even  though  directory 
only,  should  not  be  deliberately  set  aside,  any  more  than 
the  directory  requirements  of  a  statute.  Nor  should 
a  directory  regulation  made  pursuant  to  or  in  aid  of  a 
statute  be  deliberately  repudiated  in  an  individual 
case.  Such  action  would  be  unauthorized  (and  de- 
structive to  system),  although  the  thing  done  would 
not  thereby  be  rendered  invalid.  It  has  been  held  by 
the  War  Department  that  certain  regulations  made 
for  the  purpose  of  carrying  out  the  law  with  reference 
to  appointments  from  the  ranks,  and  which  prescribe 
requirements  relating  to  the  examination  of  candi- 
dates, can  not  be  set  aside  in  individual  cases.  This 
decision  is  manifestly  correct,  whether  it  rests  on  the 


97 

ground  that  the  regulations  were  intended  to  be  im- 
perative, or  on  the  ground  that  the  Department  has 
no  authority  thus,  in  individual  cases,  to  set  aside 
regulations  made  pursuant  to  a  statute,  even  though 
they  be  directory  only/ 

10.  When  there  is  a  doubt  as  to  the  meaning  of  a 
regulation,  reference  may  be  had  to  the  order,  if  any 
there  be,  on  which  it  is  based,  for  an  explanation  of 
the  doubtful  language.  This  is  an  application  of  a 
rule  of  statutory  construction.  Thus,  Justice  Miller, 
speaking  of  the  Revised  Statutes  of  the  United  States, 

said : 

"  Where  there  is  a  substantial  doubt  as  to  the  mean- 
ing of  the  language  used  in  the  revision,  the  old  law 
is  a  valuable  source  of  information.  The  Revised 
Statutes  must  be  treated  as  the  legislative  declaration 
of  the  statute  law  on  the  subjects  which  they  embrace 
on  the  1st  day  of  December,  1873.  When  the  mean- 
ing is  plain,  the  courts  can  not  look  to  the  statutes 
which  have  been  revised  to  see  if  Congress  erred  in 
that  revision,  but  may  do  so  when  necessary  to  con- 
strue doubtful  language  used  in  expressing  the  mean- 
ing of  Congress."    (United  States  v.  Bowen,  100  U.  S., 

513.) 

So,  where  there  is  a  doubt  as  to  the  meaning  of  a 
regulation,  reference  may  be  had  to  the  antecedent 
history  of  the  subject.  This  is  not  uncommonly  a 
source. of  information  in  the  construction  of  regula- 
tions, and  recourse  is  often  had  to  it  as  a  matter  of 
historical  illustration  and  confirmation,  even  when 
the  language  of  the  regulation  is  entirely  free  from 

doubt. 

1  See  G.  C.  M.  O.  No.  27,  Navy  Dep't,  1898. 

13190 7 


98 

11.  "He  knows  not  the  law  who  knows  not  the  rea- 
son for  the  law."  In  construing  a  regulation  the 
reason  for  it  may  be  taken  into  account,  and  cases 
excluded  from  it  which,  although  within  the  letter  of 
the  regulation,  are  not  within  the  reason  for  it.  This 
also  is  the  application  of  a  principle  of  statutory  con- 
struction. "It  is  a  familiar  rule,"  say  the  Supreme 
Court,  "that  a  thing  may  be  within  the  letter  of  the 
statute  and  yet  not  within  the  statute,  because  not 
within  its  spirit,  nor  within  the  intention  of  its 
makers.  This  has  been  often  asserted,  and  the  reports 
are  full  of  cases  illustrating  its  application.  This  is 
not  the  substitution  of  the  will  of  the  judge  for  that 
of  the  legislator,  for  frequently  words  of  general 
meaning  are  used  in  a  statute,  words  broad  enough  to 
include  an  act  in  question,  and  yet  a  consideration  of 
the  whole  legislation,  or  of  the  circumstances  sur- 
rounding its  enactment,  or  of  the  absurd  results 
which  follow  from  giving  such  broad  meaning  to  the 
words,  makes  it  unreasonable  to  believe  that  the  legis- 
lator intended  to  include  the  particular  act."  ' 

12.  When  the  punctuation  is  such  as  to  interfere 
with  true  interpretation,  it  should  be  disregarded. 
This  rule  of  statutory  interpretation  is  applicable  to 
the  interpretation  of  regulations.  But  the  evidence 
of  the  interference  should  be  clear.  As  stated  by 
Black  and  the  authorities  cited  by  him:  "In  the 
interpretation  of  written  instruments,  very  little  con- 
sideration is  given  by  the  courts  to  the  punctuation, 
and  it  is  never  allowed  to  interfere  with  or  control 
the  sense  and  meaning  of  the  language  used.  The 
words  employed  must  be  given  their  common  and 

1 143  U.  S.,  459. 


99 

natural  effect,  regardless  of  the  punctuation  or  gram- 
matical construction;  and  considerations  based  on  the 
l)unctuation  alone  must  never  be  allowed  to  violate 
the  well-settled  rale  tliat,  where  it  is  possible,  effect 
must  be  given  to  every  sentence,  phrase,  and  word, 
and  the  parts  must  be  compared  and  considered  with 
reference  to  each  other.     Pimctuation  is  a  most  falli- 
ble standard  by  which  to  interpret  a  writing;  it  may 
be  resorted  to  when  all  other  means  fail ;  but  the  court 
will  first  take  the  instrument  by  its  four  corners,  in 
order  to  ascertain  its  true  meaning;  if  that  is  apparent 
on  judicially  inspecting  the  whole,  the  punctuation 
wili  not  be  suffered  to  change  it. 

"If,  therefore,  the  words  of  the  act,  taken  in  them- 
selves alone,  or  compared  with  the  context  and  read 
in  the  light  of  the  spirit  and  reason  of  the  whole  act, 
convey  a  precise  and  single  meaning,  they  are  not  to 
be  affected  by  the  want  of  proper  punctuation  or  by 
the  insertion  of  incorrect  or  misplaced  marks."  ' 

"Punctuation  in  written  instruments  may  some- 
times, in  cases  of  ambiguity,  shed  light  upon  the 
meaning  of  the  parties,  but  it  is  never  allowed  to 
overturn  what  seems  the  plain  meaning  of  the  whole 
instrument.  It  may  be  resorted  to  when  all  other 
means  fail."' 

13.  The  Army  Regulations  consist  of  a  great  num- 
ber of  individual  regulations,  derived  from  a  great 
variety  of  sources,  and  reduced  to  words  by  many  dif- 
ferent persons.  They,  to  a  large  extent,  relate  to  the 
business  of  the  different  staff  departments  of  the 
Army,   the  regulations  relating  to   one  department 

1  Black's  Construction  and  Interpretation  of  the  Laws,  p.  186. 
•^  Am.  and  Engl.  Enc.  of  Law,  vol.  11,  p.  531,  and  authorities 
cited. 


100 

often  not  affecting  others.  Words  may  sometimes, 
in  consequence  of  this,  be  differently  used  in  different 
connections,  or,  perhaps,  with  meanings  qualified  by 
their  surroundings.  The  rule  of  statutory  construc- 
tion, Nosciter  a  sociis,  here  applies.  To  illustrate: 
Paragraph  771,  of  the  Army  Regulations  of  1889,  pre- 
scribed that  affidavits  or  depositions  might  be  taken 
before  certain  military  officers,  without  specifying  in 
what  cases.  According  to  the  language  of  this  para- 
graph, taken  by  itself,  these  officers  were  given  the 
power  to  take  affidavits  and  depositions  (which  was 
held  to  include  the  administering  of  oaths)  for  all  pur- 
poses whatsoever ;  but,  as  the  paragrajdi  was  amongst 
other  paragraphs,  and  in  an  article,  relating  to  property 
accountability,  it  was  evidently  the  intention  to  confer 
the  power  (an  excess  of  authority  even  then)  only  for 
the  purpose  of  accounting  for  public  property  in  the 
custody  of  the  military  establishment.  The  meaning 
of  the  paragraph  was  determined  by  its  surroundings. 

14.  As  with  statutes,  so  with  executive  regulations, 
contemporaneous  construction,  and  official  usage  for  a 
long  period,  by  the  persons  charged  with  their  admin- 
istratiou,  are  among  the  legitimate  aids  in  determin- 
ing their  meaning.  By  contemporaneous  construction 
is  meant  that  put  on  the  regulation  at  the  time  that  it 
was  made.  As  usage  under  a  regulation  is  generally 
founded  on  contemi3oraneous  construction,  these,  thus 
united,  should  ordinarily  be  considered  as  couclusive; 
except,  of  course,  when  the  question  is  as  to  a  conflict 
between  the  regulation  and  some  superior  rule  of 
action. ' 

^  Under  the  head  of,  "Principles  governing  Regulations," 
Colonel  Winthrop,  in  his  work  on  Military  Law,  points  out  and 


101 

In  the  administration  of  military  affairs,  as  in  other 
branches  of  government,  precedents  are  of  great  value, 
and  an  authoritative  construction,  once  given  to  a 
regulation,  should  thereafter  receive  great  weight. 
Stare  decisis,  et  non  qiiieta  movere,  is  a  maxim  appli- 
cable to  constructions  of  regulations  by  the  Executive, 
as  well  as  to  constructions  of  law  by  the  courts.  To 
change  the  accepted  meaning  of  a  regulation  by  a  new 
construction  is  disturbing,  and  should  be  avoided.  It 
is  preferable  to  change  the  regulation  itself  when  that 

can  be  done. 

We  see  it  sometimes  announced  that  the  action 
taken  in  a  case  will  not  be  followed  as  a  precedent. 
This  is  scarcely  more  than  a  declaration  of  a  present 
intention  in  regard  to  future  action,  and  as  such 
affects  only  the  authority  making  it,  and  is  not  even 
legally  binding  on  him.  If  the  thing  done  be  within 
th'e  legal  power  of  the  authority  doing  it,  it  will  be  a 
precedent,  although,  perhaps,  weakened  by  the  cir- 
cumstances of  the  case.  Accordingly,  we  find  prece- 
dents of  this  kind  cited,  notwithstanding  the  announce- 
ment that  the  action  taken  is  not  to  be  so  regarded. 

But  it  is  not  the  object  of  these  remarks  to  treat  the 
subject  of  the  construction  of  regulations  at  any 
length.  All  that  has  been  attempted  has  been  to 
point  out  a  few  of  the  most  important  principles. 
For  the  rest  it  may  be  said  that  in  general  the  rules 
of  statutory  construction  will  be  safe  guides. 

discusses  the  following  rules : 

1.  Thev  must  not  contravene  existing  law. 

2.  They  must  not  legislate. 

3.  They  must  confine  themselves  to  their  subject. 

4.  They  must  be  uniform. 

5.  They  should  be  equitable. 


APPENDIX    A. 


LETTER  OF  THE  SECRETARY  OF  WAR 


IN    REPLY   TO 

House  Resolution  of  April  13,  1874,  to  examine  and  report 
on  General  Orders  No.  32,  \A^ar  Department,  Adjutant  Gen- 
eral's Office,  of  March  15,  1873,  as  published  in  Executive 
Docun:ient  No.  273,  House  of  Representatives,  4-3d  Congress, 
1st  Session. 


War  Department,  June  1,  1874. 

Sir:  Referring  to  tlie  House  resolution  of  April  13,  1874,  to 
examine  and  report  as  to  General  Orders  No.  32,  War  Depart- 
ment, Adjutant  General's  Office,  of  March  15,  1873,  I  inclose 
herewith  a  copy  of  that  order. 

In  my  annual  report,  which  has  been  submitted  to  Congress, 
you  will  find  specific  reference  to  this  order,  with  my  reasons  for 
issuing  it. 

The  House  resolution  directs  examination — 

1st.  As  to  the  authority  of  the  Secretary  of  War  to  issue  such 
order. 

2d.  Whether  such  order  abridges  the  rights  of  officers  in  free- 
dom of  speech  and  to  petition  of  Congress  as  citizens. 

3.  Whether  such  order  is  in  contravention  of  exclusive  right 
of  Congress,  under  paragraph  13,  section  8,  Article  VII  of  the 
Constitution,  to  make  rules  and  regulations  for  the  government 
of  the  Army,  etc. 

4th.  As  to  the  authority  of  the  Secretary  of  War  over  retired 
officers  who  are  not  subject  to  assignment  to  any  military  duty. 

I. 

Under  the  first  inquiry,  as  to  my  authority  to  issue  the  order, 
I  have  to  say  that  it  was  issued  by  me  under  the  authority 
intrusted  by  the  President,  under  section  1  of  the  law  of  August 

(103) 


104 

7,  1789,  the  orders  of  the  Secretary  of  War  (except  as  to  duties 
specifically  imi^osed  by  certain  statutes)  being,  in  contemplation 
of  law,  the  orders  of  the  President.  (See  Attorney-General 
Wirt's  opinion  of  July  6,  1820. ) 

The  United  States  Supreme  Court  has  also  ruled  on  this  sub- 
ject. In  United  States  v.  Eliason,  16  Pet.,  291,  the  court  said  (p. 
457,  vol.  7) : 

' '  The  Secretary  of  War  is  the  regular  constitutional  organ  of 
the  President,  for  the  administration  of  the  military  establish- 
ment of  the  nation;  and  rules  and  orders  publicly  promulged 
through  him  must  be  received  as  the  acts  of  the  Executive,  and 
as  such  be  binding  upon  all  within  the  sphere  of  his  legal  and 
constitutional  authority.  Such  regulations  can  not  be  questioned 
or  defied,  because  they  may  be  thought  unwise  or  mistaken." 
(See  also  Wilcox  v.  Jackson,  13  Pet.,  498.) 

Such  has  been  the  uniform  practice  in  the  conduct  of  military 
affairs  since  the  organization  of  the  Army  in  1790,  and,  if  desired, 
this  point  could  be  greatly  amplified  and  illustrated.  (7  Opin. 
Attv.  Gen.,  p.  453.) 

II. 

The  second  point  of  the  resolution,  as  to  whether  such  order 
abridges  the  right  of  officers  in  freedom  of  speech  and  the  right 
to  petition  Congress  as  citizens  of  the  United  States  under  the 
Constitution,  covers  broader  grounds. 

Congress  undoubtedly  has  unlimited  power  over  the  Army. 
Article  I,  section  8,  gives  it  power  "to  raise  and  support  armies ;" 
also,  power  ' '  to  make  rules  for  the  government  and  regulation  of 
the  land-forces ; "  and  power  "to  make  all  laws  which  shall  be 
necessary  and  proper  for  carrying  into  execution  the  foregoing 
powers,  and  all  other  powers  vested  by  the  Constitution  in  the 
Government  of  the  United  States,  or  any  department  or  officer 
thereof." 

Acting  under  this  very  extensive  and  unlimited  power.  Con- 
gress has  raised  and  supported  armies  and  provided  statutory 
rules  and  articles  for  their  governance,  commonly  known  as  the 
"Articles  of  War."  (Act  of  April  10,  1806,  and  amendatory 
acts ;  see  Scott's  Digest  United  States  Military  Laws,  p.  297. ) 

These,  however,  have  formed  but  a  statutory  frame-work,  as 
it  were,  because,  in  addition  thereto,  numerous  regulations  in 


105 

aid  or  complement  of  the  statutes  (8  Opin.  Atty.  Gen.,  343),  as 
well  as  standing  general  orders  for  the  goverament  of  the  Army, 
have  heen  issued  by  successive  Executives. 

Presidents  Washington,  Adams,  and  Jefferson,  caused  to  be 
issued  many  such  standing  orders,  from  1790  to  1819.  (See 
Duane"s  Military  Dictionary. ) 

SiTbsequently.  Congress,  by  the  acts  of  March  3,  1813,  section 
5,  and  April  24,  1816,  section  9,  gave  specific  power  to  the  Secre- 
tary of  War  to  make  general  regulations  subject  to  approval  of 
the  President,  which  should  be  respected  "and  obeyed  until 
altered  or  revoked  by  the  same  authority." 

In  discussing  the  ' '  Navj-  Regulations, "  Attorney-General  Gush- 
ing said  (6  Opin.,  pp.  10,  15),  that  "cases  may  be  supposed  in 
which  it  is  not  easy  to  draw  the  line  between  what  is  legislative 
and  what  is  executive  or  administrative,  and  so  it  is- in  regard  to 
every  such  question  of  the  distinction  of  powers. " 

He  came  to  the  conclusion  that ' '  the  President  and  subordinate 
executive  officers,  whether  military  or  ci^•il,  possess  a  limited 
power  to  establish  regulations,  provided  these  be  in  execution  of, 
and  supplemental  to,  the  statutes  and  statute  regulations;  but 
not  to  repeal  or  contradict  existing  statutes  or  statute  regula- 
tions, nor  to  make  proA-isions  of  a  legislative  nature. " 

The  difference  between  rules,  regulations,  and  standing  gen- 
eral orders  is  as  follows : 

"Rules"'  are  statutory  enactments  for  the  goverament  of  the 
Ai-my,  affixing  certain  penalties  for  a  violation,  and  declaring 
what  shall  be  deemed  military  offenses.  (See  the  "Rules  and 
Articles  of  War,"  act  of  April  10,  1806.) 

"General  Regulations"  are  a  system  of  ordinances  for  the 
administration  of  the  affairs  of  the  Army  and  for  better  defining 
and  prescribing  the  respective  duties  and  powers  of  officers  and 
men  in  the  military  service,  and  embracing  all  necessary  f  onus 
of  a  general  character.  (See  acts  March  3,  1813,  section  5 ;  July 
28,  1866,  section  37 ;  July  15,  1870,  section  20. ) 

Congress  may  make  the  regulations,  or  it  may,  as  it  has  done, 
devolve  on  the  President  the  authority  to  make  regulations  not 
inconsistent  with  law. 

"Standing  general  orders  "  are  Executive  instructions,  or  direc- 
tions to  do  or  not  to  do  particular  acts. 


106 

Police  and  local  or  interior  regulations  come  under  this  head. 
(See  Duane's  Military  Dictionary;  Army  Regulations  of  1821, 
approved  for  one  year  by  Congress,  and  subject  then  remitted  to 
President  under  acts  of  1813  and  1816,  article  5,  par.  1,  and  article 
36,  par.  1.) 

In  Harvey  v.  United  States,  3d  Nott  and  Huntington's  Rep., 
42,  the  Court  of  Claims  have  held  that  a  mere  order  of  the  Presi- 
dent or  of  the  Secretary  of  War  is  not  regulation. 

Article  I  of  the  amendments  to  the  Constitution,  declares  that 
Congress  shall  make  no  law  abridging  the  freedom  of  speech  or 
the  right  of  the  people  peaceably  to  assemble,  and  to  petition  the 
Government  for  a  redress  of  grievances.  This  article,  it  is 
believed,  is  not  in  any  way  applicable  to  persons  in  the  land 
forces,  because  plenary  powers  had  already  been  given  by  the 
Constitution  to  Congress  in  respect  to  such  persons,  and  article 
10  of  the  amendments  in  saying  that  "powers  not  delegated  to 
the  United  States  by  the  Constitution  *  *  *  are  reserved  to 
the  States,  respectively,  or  to  the  people,"  contains  the  implica- 
tion that  the  foregoing  amendments  had  no  reference  whatever 
to  the  powers  already  delegated  to  Congress  by  the  Constitiition. 

It  seems  further  apparent  that  Article  I  of  the  amendments, 
just  quoted,  is  not  applicable  to  the  Army  from  Article  VI  of  the 
amendments,  which  provides  that  ' '  in  all  criminal  prosecutions 
the  accused  shall  enjoy  the  right  to  a  trial  by  jury,  nor  shall  any 
person  be  subject  for  the  same  offense  to  be  twice  put  in  jeopardy 
of  life  or  limb." 

Despite  this  amendment  soldiers  are  triable  for  crimes  other- 
wise than  by  jury.  (See  sixty-fifth,  sixty-sixth,  and  ninety-ninth 
articles  of  war. )  Congress  has,  however,  in  the  eighty-seventh 
article  of  war,  declai-ed  that  "no  soldier  shall  be  tried  a  second 
time  for  the  same  offense, "  which  would  hardly  seem  to  have 
been  necessary  if  the  constitutional  amendment  was  deemed 
api)licable. 

Article  V  of  the  amendments  especially  excepts  criminal  cases 
arising  in  the  land  forces  from  the  necessity  of  presentment  by 
the  grand  jury.  Congress  appears  to  have  always  acted  on  the 
views  herein  expressed. 

Thus,  in  the  Articles  of  War,  there  are  numerous  instances 
where  Congress  has  abridged  the  freedom  of  speech,  wdth  refer- 


107 


ence  to  persons  in  the  Army,  by  statutes  not  at  all  applicable  to 
the  people  at  large.     (See  articles  5,  23,  24,  28,  52,  53,  and  ...  ) 

The  right  of  the  people  peacefully  to  assemble  to  petition  the 
Government  for  a  redress  of  grievances,  is  also  a  riglit  incom- 
patible with  subordination  and  discipline  in  the  military  service. 

A  cUizen,  one  of  the  people,  as  contradistmgmshed  from  a 
soldier  in  the  amendments,  can  go  where  he  pleases,  provided 
he  does  not  trespass;  he  can  go  to  an  assembly  to  make  such 

^'Thrsoldier  has  no  such  right.  Congress,  by  the  Articles  of 
War,  has  limited  and  restricted  his  movements  m  numerous 
ways  dependent  on  the  will  of  superior  military  authority. 
(See  articles  12,  20,  21,  27,  41,  48,  50,  and  52. )  . 

It  seems  further  apparent  that  this  right  ot  the  people  ve^ce- 
ably  to  assemble  and  petition  the  Government  for  a  redress  of 
qrievances  has  no  applicability  to  the  military  service  because 
Congress  has  provided,  in  the  thirty-fourth  and  thirty-fitt^  arti- 
cles of  war  (act  of  April  10,  1806),  exactly  how  an  officer  or 
soldier  may  obtain  redress  of  grievances,  by  an  individual  appli- 
cation through  certain  military  channels.  (See,  also,  general 
orders  of  September  24,  1806,  from  general  headquarters. ) 

Should  officers  or  soldiers  endeavor  to  assemble,  with  a  view 
of  making  a  jomt  petition  or  application,  such  conduct  would, 
under  the  article  of  war,  be  a  military  offense,  triable,  either  as 
"sedition,"  under  the  seventh  article  of  war,  or  as  conduct  to 
the  prejudice  of  good  order  and  military  discipline,  under  the 
ninety-ninth  article  of  war.  ,       .,.^  ^      ^ 

It  would  strike  at  the  root  of  discipline  and  military  suboidi- 
nation  so  essential  to  the  effectiveness  of  a  military  force,  to 
concede  that  the  Army  could  be  turned  into  a  debating  society 
to  discuss  the  official  acts  of  superior  authority,  on  the  plea  that 
Article  I  of  the  constitutional  amendments  was  paramount,  and 
embraced  such  designated  class  of  individuals.  It  would  ren^ 
der  nugatorv  the  articles  of  war  already  recited,  as  well  as  that 
article  (5)  wiiich  makes  the  use  of  contemptuous  or  disrespectful 
words  against  the  President.  Vice-President,  Congress,  governor, 
or  State  legislature,  an  offense.  .     ,  -o-, 

When  the  Pennsylvania  and  New  Jersey  lines,  m  1 .81,  respec- 
tively undertook  to  proceed  to  places  of  assembly  of  their  respec- 
tive legislatures  to  obtain  from  the  governor  redress  of  grievances. 


108 

the  movement  was  not  only  seditious,  but  mutinous  and  danger- 
ous to  the  safety  of  the  nation,  for  the  reason  that  these  persons 
were  not  peaceful  citizens,  but  armed  and  disciplined  soldiers. 

These  preliminary  observations  are  necessary,  in  order  to  show, 
that  the  National  Constitution  nowhere  gives  any  right  to  officers 
or  soldiers  in  the  Army,  either  as  to  freedom  of  speech  or  to  peti- 
tion Congress  as  citizens. 

So  long  as  such  i^ersons  remain  in  the  military  service  their 
civil  rights  are  wholly  subordinate  to  the  will  of  Congress  and 
the  lawful  orders  of  their  proper  military  sxiperiors ;  a  citizen 
has  the  absolute  right  to  vote  in  his  own  precinct  after  due  resi- 
dence, etc.  A  soldier  has  no  such  right,  although  he  may  have 
fulfilled  all  the  requirements  of  "-the  local  statute.  His  superior 
officer  may  forbid  him  the  privilege  of  going  to  the  polls,  and 
such  prevention  of  the  soldier  from  voting  would  not  subject  the 
officer  to  any  punishment  under  the  State  law,  because  it  would 
rest  solely  with  him,  under  the  laws  of  the  United  States,  to 
determine  what  military  necessity  controlled  his  order. 

Acting  on  these  principles.  Congress,  by  the  ninety -ninth  arti- 
cle of  war,  has  made  other  proceedings  military  offenses  besides 
those  enumerated  in  such  articles,  because  it  declares  that  ' '  all 
disorders  and  neglects  which  officers  and  soldiers  may  be  guilty 
of,  to  the  prejudice  of  good  order  and  military  discipline,  though 
not  mentioned  in  the  foregoing  articles  of  ivar,  are  to  be  taken 
cognizance  of  by  a  general  or  regimental  court-martial,  according 
to  the  nature  and  degree  of  the  offense,  and  be  punished  at  their 
discretion. " 

Under  military  law,  it  is  held  that  a  violation  of  a  "  standing 
general  order  "  woiild  necessarily  fall  under  this  article  of  war. 

Under  the  heretofore  unquestioned  power  vested  in  the  Presi- 
dent as  Commander  in  Chief,  and  by  the  acts  of  Congress,  many 
orders  have  been  successively  issued  since  1790,  restricting  and 
controlling  officers  and  soldiers  in  their  movements  and  immimi- 
ties.  (See  General  Orders  of  May  22,  1797,  from  headquarters  of 
the  Army,  Fort  Washington. ) 

Notably  are  the  orders  as  to  how  officers  and  soldiers  shall 
wear  their  hair  and  beards.  (See  General  Orders  No.  31,  Army 
Headquarters,  Adjutant  General's  Office,  June  12,  1851 ;  General 
Orders  No.  2,  Anny  Headquarters,  Adjutant  General's  Office, 
January  6,  1853.) 


109 


A  hasty  survey  of  past  orders  confirms  these  i:emarks 
On  the  subject  of  correspondence,  General  OrdersNo.  .   ,    r.nu 
the  Adjutant  General's  Office,  Washington,  December  10,  18~J, 

said:  , 

"  From  the  repeated  attempts  which  have  recently  been  made 
bv  officers  of  the  Army  to  open  a  direct  correspondence  with  the 
Department  of  War,  and  even  .vith  the  Executive,  on  matters  of 
m  Ita  V  detail  and  points  of  duty,  in  disregard  of  the  estabhshed 
niles  of  service,  the  General-in-Chief  finds  himself  under  the 
ntesst  of  arr;sting  the  i-gularity  by  calling  the  a^^^^^^^^^ 
of  those  concerned  to  the  directions  contained  m  the  sixt> -sixth 
article  of  the  General  Regulations  for  the  Army   on  the  subject 
of  military  correspondence.     While  a  strict  conformity  to  those 
directions  is  enjoined,  a  departure  from  tj--  -n  be  regar^^^^^^ 
onlv  as  a  breach  of  military  discipline,  subjecting  the  ofEendeis 
to  the  penalties  provided  by  the  Articles  of  War. 

In  the  following  year  General  Orders  No.  18,  April  20,  1830. 
from  the  same  office,  was  issued.     It  said : 

"From  the  number  of  letters  referred  to  the  general  head^ 
quarters  of  the  Army,  addressed  by  soldiers  to  the  Secretary  of 
War  and  to  other  members  of  the  civil  departments  of  the  Gov- 
ernment, asking  to  be  discharged  from  the  service,  and  m  rela- 
tion to  other  subjects-which  letters  ought  to  have  ^e^n  sub^ 
Biitted  in  the  first  instance,  according  to  estabhshed  lules,  to 
their  immediate  commanding  officers,  and  by  them,  if  approved, 
to  the  colonels  of  their  regiments,  who  would  forward  them 
throu-h  the  proper  channel  of  communication  pointed  out  by 
the  General  Regulations-the  major-general  commandmg  the 
Army  finds  it  his  duty  to  put  a  stop  to  such  irregularities,  and 
to  forbid  them  in  future.     In  every  case  hereafter  of  a  broach 
of  the  established  rules  of  correspondence,  the  letters  will  be 
returned  to  the  commanding  officer,  to  be  made  the  grounds  of 
a  charge  of  disobedience  of  orders,  that  the  offenders  maybe 
brought  to  a  court-martial  to  answer  accordingly." 

In  183T,  General  Orders  No.  79,  December  23,  were  issued  from 
the  Adjutant  GeneraVs  Office,  Washington,  in  which  Secretary 
of  War  Poinsett,  in  reenunciating  the  principle,  said: 

"Letters  are  frequently  received  at  this  Department  from 
officers  of  the  Army,  through  members  of  Congress,  preferring 


110 

claims,  or  seeking  redress  of  grievances,  and  too  often  couched 
in  language  disrespectful  to  tlieir  superiors  in  command.  In 
such  cases  they  will  never  be  considered,  however  respectable 
the  channel  through  which  they  come :  but  under  no  circiim- 
stances  is  it  necessary  for  an  officer  to  avail  himself  of  any  other 
than  the  regular  military  channel.  Claims  or  remonstrances 
addressed  to  the  Department  in  temperate  and  respectful  lan- 
guage vnll  be  i)romptly  considered,  and  decided  on  their  merits 
without  prejiidice  or  partiality,  according  to  the  rules  of  ecjuity 
or  military  usage,  where  it  governs  the  case ;  and  under  no  cir- 
cumstances will  such  rules  and  usage  be  departed  from,  to  favor 
or  to  wi'ong  any  one. " 

Coming  down  to  1861,  Secretary  of  War  Cameron,  in  General 
Orders  No.  67,  Adjutant  General's  Office,  of  August  26,  ordered 
that — 

*  *  *  '  'All  correspondence  and  communication,  verbally  or 
by  Avi'iting,  printing,  or  telegraphing,  respecting  operations  of 
the  Army  or  military  movements  on  land  or  water,  or  respecting 
the  troops,  camps,  arsenals,  entrenchments,  or  military  affairs, 
within  the  several  military  districts,  by  which  intelligence  shall 
be  directly  or  indirectly  given  to  the  enemy,  without  the  author- 
ity and  sanction  of  the  general  in  command,  be,  and  the  same 
are,  absolutely  prohibited,  and  from  and  after  the  date  of  this 
order,  persons  violating  the  same  will  be  proceeded  against  under 
the  fifty-seventh  article  of  war. " 

It  is  proper  to  remark  that  this  was  a  time  of  war,  but  the 
authority  to  issue  the  order  remains  the  same. 

Later  still,  on  March  30,  1864,  the  present  Executive,  then 
General-in-Chief,  in  General  Orders  1'29,  War  Department,  Adju- 
tant General's  Office,  said : 

' '  The  attention  of  all  officers  is  called  to  the  Army  Regulations 
and  General  Orders  in  regard  to  correspondence  on  official  mat- 
ters. All  such  correspondence  must  be  conducted  through  the 
jjroper  official  channels,  except  in  cases  of  pressing  necessity, 
which  do  not  leave  time  for  regular  communication,  and  then 
the  necessity  must  be  stated.  All  applications  or  correspond- 
ence, through  irhomsoever  made,  in  violation  of  this  order,  wnll 
not  be  responded  to,  and  the  wi'iters  ^^^ll  be  arrested  and  tried 
for  disobedience  of  orders,  or  recommended  to  the  President  for 
dismissal. " 


Ill 

The  Constitution,  section  2,  paragraph  1,  while  making  the 
President  the  Commanaer  in  Chief  of  the  Army,  has  given  him 
authority  to  require  the  opinion  in  siting  of  the  principal  offi- 
cer in  each  of  the  Executive  Departments,  upon  any  subject 
relating  to  the  diities  of  their  respective  offices;  and  section  3 
savs  "he  shall  from  time  to  time  give  to  Congress  mf.n-mation 
of  the  state  of  the  Union,  and  recommend  to  their  consideration 
such  measures  as  he  shall  judge  necessary  and  expedient. " 

There  is  no  law  or  constitutional  provision  giving  hke  authority 
to  any  officer  of  the  Armv,  constitutionally  subordinate  to  the 
President  and  it  is  reasonable  to  assume  if  such  officers  were 
entitled  to  such  privilege,  it  would  be  stated  in  some  such  way. 
The  right  of  Congress,  or  of  either  House,  collectively  or  by 
committee,  to  call  on  any  officer  of  the  Army  for  his  advice  or 
opinion  on  any  matter  is  undoubted,  because  the  Army  is  wholly  • 
the  creation  of  Congi-ess.  ' 

The  endeavor  of  any  officer  or  soldier,  however,  of  his  own 
motion  to  address  Congress  or  either  House,  or  its  Members, 
soliciting  suggesting,  or  recommending  action  by  Members  for 
or  against  military  affairs  concerning  the  ' ■  whole  Avmj,"  is  con- 
ceived to  be  a  very  different  matter,  liable  to  be  detrimental  to 
the  public  service  and  disrespectful  to  the  President,  ^^^th  whom, 
officially,  alone  rests  this  power  under  the  Constitution.  Gen- 
eral Orders  No.  33  clearly  expresses  this  opinion. 

There  are  many  instances  where  it  becomes  necessary  for  offi- 
cers to  applv  to  Congi-ess  for  special  bills  of  relief  from  liability 
for  loss  of  public  property  for  which  accountable. 

The  order  in  question  does  not  preclude  any  officer  from  making 
direct  application  to  Congress,  for  the  reason  that  the  legislation 
applied  for  would  be  private  and  personal,  as  to  the  officer  him- 
self in  an  individual  capacity,  and  not  concerning  the  ivhole  Army. 
Occasionally  it  happens  that  an  officer  may  make  suggestions 
of  gi-eat  value  to  the  service  at  large.  This  is  provided  for  m  the 
order  by  paragraph  2,  which  says  that— 

"All  petitions  to  Congress  by  officers,  relative  to  subjects  of  a 
military  character,  will  be  forwarded  through  the  General  of  the 
Army  and  Secretary  of  War  for  their  action  and  transmittal. 
From  these  observations  is  to  be  collected— 
1st.  That  no  heretofore  existing  right  of  an  officer  in  freedom 
of  speech  has  been  abridged  by  General  Orders  No.  33;  and, 


112 

3d.  That  the  only  right  to  petition  Congi-ess  being  a  right  to 
petition  for  a  redress  of  grievance,  Congress  has  specifically  pro- 
A-ided  in  the  Ai-ticles  of  War  how  an  officer  or  soldier  shall  prefer 
snch  a  petition  and  to  whom.  General  Orders  No.  33  does  not 
apply  to  such  matter. 

As  to  the  mere  propriety  or  expediency  of  issuing  this  order, 
it  is  not  believed  any  inquiry  is  intended. 

in. 

The  third  inquiry,  whether  such  order  is  in  contravention  of 
the  exclusive  right  of  Congress,  under  the  Constitution,  to  make 
rules  for  the  government  and  regiilation  of  the  land  forces,  has 
already  been  answered  under  the  second  head,  in  discussing  the 
difference  between  rules,  regulations,  and  standing  general  orders. 

In  the  case  before  cited  of  United  States  v.  El'iason,  the  United 
States  Supreme  Court  said  (see  also  acts  of  Congress  of  March  3, 
1813,  and  April  34,  1816,  giving  authority  to  make  regulations) : 

"  The  power  of  the  Executive  to  establish    *    *    *    regulations 

for  the  government  of  the  Anny  is  undoubted.     The  power  to 

establish  implies  necessarily  the  power  to  modify  or  repeal,  or  to 

create  anew. 

******* 

"Such  regulations  can  not  be  questioned  or  defied  because  they 
may  be  thought  unwise  or  mistaken." 

Again,  in  United  States  v.  Freeman,  3  Howard's  U.  S.  Rep. , 
566,  the  same  coiirt  said  that — 

"The  Army  Regulations  when  sanctioned  by  the  President 
have  the  force  of  law." 

This  was  reaffirmed  by  the  United  States  Supreme  Court  in 
Gratiot  v.  United  States,  4  Howard's  U.  S.  Rep.,  80.  General 
Orders  No.  33  is,  however,  viewed  as  an  Executive  order  rather 
than  a  regulation. 

The  before-quoted  act  of  1813  made  it  the  duty  of  the  Secretary 
of  War,  and  authorized  him,  Avith  the  approval  of  the  President, 
to  prei^are  general  regulations  defining  and  prescribing  the  duties 
and  powers  of  certaua  officers,  and  the  act  of  April  34, 1816  {ante) 
recognized  the  regulations  then  in  force,  "subject,  however,  to 
such  alterations  as  the  Secretary  of  War  may  adopt,  with  the 
approbation  of  the  President. " 


•113 

The  law  of  July  28, 1866,  section  37,  enacted  that  the  Secretary 
of  War  should  submit  to  Congress  on  its  next  session  a  code  of 
regtilations    *    *    *: 

' '  The  existing  regulations  to  remain  in  force  until  Congress 
shall  have  acted  on  said  report."' 

The  action  of  Congress  on  that  report  was  a  negative  one— in 
fact,  no  action  at  all;  and  in  1870  (act  of  July  15,  section  20) 
Congress  directed  the  Secretary  of  War  to  prepare  a  system  of 
regulations,  etc. ,  which  are  now  before  it. 

Whether  section  37  of  the  above-recited  act  of  July  28,  1866, 
imj)Iicdhj  repealed  the  old  acts  of  1813  and  1816,  which  gave  to 
the  President  specific  power  to  make  regulations,  is  not  necessary 
to  be  considered,  in  consequence  of  the  light  in  which  Greneral 
Orders  No.  82  is  viewed,  besides  which  the  order  does  not  modify 
any  existing  regulation. 

Repeals  by  implication  are  never  favored.  Whenever  Congress 
shall  have  prescribed  a  series  of  statutory  regulations,  there  is 
no  doubt  that  such  regulations  would  then  supersede  and  render 
nugatory  any  Executive  regulations  on  the  same  subject. 

Paragraph  3  of  General  Orders  No.  32  refers  to  officers  visiting 
Washington.  A  regulation  of  President  Madison,  of  1813,  pre- 
scribed that — 

"All  officers  arriving  at  the  seat  of  Grovernment  will  *  *  * 
report  to  the  Adjutant-General." 

The  manner  and  mode  of  "reporting"  is  purely  a  subject  of 
orders,  liable  to  be  changed  according  to  circumstances.  This, 
as  well  as  authority  to  visit  or  remain  at  the  seat  of  Govern- 
ment, has  always  been  controlled  or  limited  by  the  Executive  or 
General-in-Chief  acting  imder  his  authority,  by  general  orders 
in  the  nature  of  local  regulations. 

The  same  authority  to  grant  leaves  of  absence  includes  the 
Ijower  to  pi-escribe  the  limits  of  such  leaves. 

Reference  is  made  to  annexed  orders  (marked  A,  B,  C,  and  D), 
as  showing  the  practice  heretofore  existing,  where  officers  were 
even  forbidden  to  visit  Washington. 

As  General  Orders  No.  32  is  in  no  way  repugnant  to,  or  in  vio- 
lation of,  any  statiitory  enactment,  it  is  not  perceived  that  it  in 
any  way  contravenes  the  constitutional  right  of  Congress  to 
make  rules  and  regulations  for  the  government  of  the  Army. 

13100 — 8 


114' 


IV. 


The  fourth  inquiry  is  as  to  the  authority  of  the  Secretary  of 
War  over  officers  of  the  Army  ivholly  retired  from  active  service 
and  unassignable,  under  existing  laws,  to  any  kind  of  military 
duty. 

There  is  some  confusion  of  language  in  this  part  of  the  House 
resolution,  so  that  the  meaning  is  not  readily  discernible. 

The  law  distinguishes  between  two  classes  of  disabled  officers : 

First.  Officers  "  partially  retired, "  and 

Second.  Officers  ' '  wholly  retired"  from  active  service. 

Over  the  latter  class  refeiTed  to  in  the  resolution  the  President 
has  no  authority  whatever. 

The  officer  who  is  recommended  by  the  retiring  board  to  be 
"wholly  retired  from  the  service"  ceases,  on  the  approval  of  the 
President,  connection  with  the  military  service.  Under  the 
statute  he  receives  ' '  one  year's  pay  and  allowances, "  and  his 
name  is  "thenceforward  omitted  from  the  Army  Register." 
(See  act  of  Congress  of  August  3,  1861,  section  17.) 

If  the  House  resolution  was  intended  to  refer  not  to  ' '  wholly 
retired  officers, "  but  to  partially  retired  officers  whose  names  are 
continued  on  the  Army  Register,  I  have  to  say  that  they  are 
under  military  jurisdiction  equally  with  other  officers.  Section 
17  of  the  act  of  August  3,  1861,  prescribed  that  such  officers 
should  be  withdrawn  from  active  ser\ace  and  command;  but 
section  35  of  the  same  act  declared  that — 

"  Retired  officers  of  the  Army  *  *  may  be  assigned  to  such 
duties  as  the  President  may  deem  them  capable  of  performing 
and  such  as  the  exigencies  of  the  public  service  may  require. " 

This  section  was  modified  (see  act  of  January  31,  1870,  section 
1;  resolution  of  April  6,  1870;  act  of  July  15,  1870,  section  23)  so 
that  now  an  officer  on  the  retired  list  can  be  assigned  to  duty 
only  at  the  "Soldiers'  Home,"  or  as  professor  in  a  college. 

The  following  provision  of  law,  with  reference  to  such  officers, 
is  still  in  full  force  and  effect.  (Section  18,  act  of  August  3, 
1861.) 

"The  officers  partially  retired  shall  be  entitled  to  wear  the 
uniform  of  their  respective  grades ;  shall  continue  to  be  borne 
upon  the  Ai-my  Register    *    *    *    and  shall  be  subject  to  the 


115 

rules  and  articles  of  war,  and  to  trial  by  general  court-martial 
for  any  breach  of  the  said  articles." 

Such  officers  are  always  re(iiured  to  report,  by  letter,  monthly 
to  the  Adintant  General  of  the  Army,  and  they  are  as  liable  to 
trial  for  disobedience  of  orders  under  the  ninth  article  of  war, 
such  as  failing,  on  direction,  to  report  before  a  board  of  survey, 
as  for  anv  other  breach  of  said  articles. 

It  will'be  perceived  that  the  retired  list  of  the  Army  is  very 
different  from  the  pension  list  of  the  Interior  Department,  which 
is  composed  wholly  of  civilians  not  subject  to  military  junsdic- 

tion  or  to  military  law.  ■  .  ^f  or.,.ii 

The  War  Department  has  recently  been  m  receipt  of  appli- 
cations from  officers  of  the  Army  on  the  retired  list  to  practice 
as  "Claim-agents  or  attorneys,"  before  the  several  Execute e 
Departments  of  the  Government.  These  officers  are  officers  of 
the  Government,  holding  places  of  profit  and  receiving  -o  pel 
cent,  of  the  pay  of  the  rank  on  which  they  are  retired.  (Act  ot 
July  15,  1870,  section  24.) 

In  fact  some  of  them,  by  being  retired  on  the  rank  of  the  com^ 
mand  in  the  volunteers  held  by  them  when  wounded  (act  of 
July  28,  1866,  section  82)  receive  now  much  more  pay  than  wliile 
on  the  active  list  of  the  Anny.  .  •  .i  , 

The  act  of  February  20, 1853,  section  2  (10  Stat. ,  p.  1 .0) ,  strictly 
prohibits,  xmder  severe  penalties,  "any  officer  of  the  United 
States  or  person  holding  any  place  of  trust  or  projit  ■ 

under  *  *  the  Government,"  from  acting  as  an  agent  or 
attorney  to  prosecute  any  claim  against  the  United  States,  or  m 
any  manner  or  by  any  means,  otherwise  than  in  the  discharge  of 
proper  official  duties,  aiding  or  assisting  in  the  prosecution  oi 
support  of  any  such  claim. 
The  act  of  June  11,  1864,  is  also  very  explicit  on  this  point. 

The  act  is  as  follows : 

Public— No.  97. 

AN  ACT  relating  to  members  of  Congress,  heads  of  Departments,  and  other  officers  of 

the  Government. 

Be  it  enacted  by  the  Senate  and  House  of  Represent aMves  of 
the  United  States  of  America  in  Congress  assembled  That  no 
member  of  the  Senate  or  House  of  Representatives  shall,  alter 


116 

his  election  and  during  his  continuance  in  office,  nor  shall  any 
head  of  a  Department,  head  of  a  Bureau,  clerk,  or  any  other 
officer  of  the  Government,  receive,  or  agree  to  receive,  any  com- 
pensation whatsoever,  directly  or  indirectly,  for  any  services 
rendered,  or  to  be  rendered,  after  the  passage  of  this  act,  to  any 
person,  either  by  himself  or  another,  in  relation  to  any  proceed- 
ing, contract,  claim,  controversy,  charge,  accusation,  arrest,  or 
other  matter  or  thing  in  which  the  United  States  is  a  party,  or 
directly  or  indirectly  interested,  before  any  Department,  court- 
martial,  Bureau,  officer,  or  any  civil,  military,  or  naval  commis- 
sion whatever.  And  any  person  offending  against  any  jiro vi- 
sion of  this  act  shall,  on  conviction  thereof,  be  deemed  guilty  of 
a  misdemeanor,  and  be  ininished  by  a  fine  not  exceeding  ten 
thousand  dollars,  and  by  imprisonment  for  a  term  not  exceeding 
two  years,  at  the  discretion  of  the  coitrt  trjdng  the  same,  and 
shall  be  forever  thereafter  incapable  of  holding  any  office  of 
honor,  ti'ust,  or  profit,  under  the  Government  of  the  United 
States. 

Approved  Jtine  11,  1864. 

(See  also  the  equally  positive  act  of  July  13,  1866,  section  62, 
chap.  184.) 

In  view  of  these  explicit  and  peremptory  laws  this  Department 
has  invariably  refused  permission  to  any  officer  of  the  Army  to 
act  as  agent  or  attorney  for  any  indiA-idual,  in  the  prosecution  of 
any  claim  against  the  United  States,  or  of  any  claim  in  which  the 
United  States  is  a  party. 

Very  respectfully,  your  obedient  servant, 

Wm.  W.  Belkxap, 

Secretary  of  War. 
The  Speaker  of  the  House  of  Representatives. 


[General  Orders  No.  32.] 

War  Department,  Adjutant  General's  Office, 

Washington,  March  15,  1873. 
The  practice — which  has  prevailed  to  a  considerable  extent — of 
Anny  officers  visiting  and  remaining  at  the  seat  of  Government 
during  the  sessions  of  Congress,  with  the  view  of  influencing 


117 

le-islation  upon  military  affairs  concerning  the  whole  Army,  and 
wiiich  have  been  or  can  be  brought  properly  to  the  attention  ot 
Congress  onlv  by  the  President,  the  Secretary  of  War,  or  the  Gen- 
eral of  the  Army,  has  become  a  serious  evil,  highly  detrimental 
to  the  public  service  and  disrespectful  to  superior  authority. 

Such  action  on  the  part  of  Army  officers  not  only  consumes  but 
is  a  task  upon  the  time  of  members  of  Congress,  causing  them 
embarrassment  and  hindering  necessary  legislation-of  which 
they  justly  complain-and  injures  the  Army  in  public  opinion. 
The  advantages,  if  any,  to  the  individual  can  not  counteract  the 
disadvantage  to  the  service. 
It  is  therefore  ordered— 

I  That  no  officer,  either  active  or  retired,  shall,  directly  or  in- 
directly without  being  called  upon  by  proper  authority,  solicit, 
suggest,  or  recommend  action  by  members  of  Congress  for  or 
against  military  affairs. 

The  fore-oing  is  not  intended  to  preclude  officers  from  illus- 
trating or  expounding  a  measure  before  Congress  which  may  have 
received  the  favor  or  sanction  of  the  President,  Secretary  of  War, 
or  General  of  the  Army.  The  experience  of  officers  when  so  used 
is  and  will  be  viewed  as  valuable.  ,  .     ,      ^ 

II  All  petitions  to  Congress  by  officers,  relative  to  subjects  ot 
a  militarv  character,  will  be  forwarded  through  the  General  of 
the  Army  and  Secretary  of  War  for  their  action  and  transmittal. 

III  All  officer  visiting  the  seat  of  Government  during  a  con- 
gressional session  will,  upon  his  arrival,  register  his  name  at  the 
Adjutant  General's  Office,  as  now  required,  and,  m  addition, 
address  a  letter  to  the  Adjutant  General  of  the  Army,  recitmg 
the  purpose  of  and  time  that  will  be  embraced  by  his  visit,  and 
the  authority  imder  which  he  is  absent  from  his  command  or 
station.  The  purpose  or  object,  so  recited,  will  be  the  strict 
guide  of  the  officer  during  his  stay. 

By  order  of  the  Secretary  of  War :        ^    ^    townsend, 

Adjutant  General. 


118 


[Order  No.  48.] 

Headquarters  of  the  Army, 
Adjutant  General's  Office, 

Washington,  May  18,  1833. 

The  practice,  which  has  so  extensively  prevailed,  of  the  officers 
of  the  Army  visiting  the  seat  of  Government,  has  been  injurious 
to  the  public  service.  The  evils  of  this  practice  have  been  not 
only  in  withdrawing  officers  from  their  proper  stations,  but  fre- 
quently in  its  effects  upon  the  business  of  the  Army,  and  upon 
public  opinion. 

There  are  no  benefits  to  individuals  which  can  counteract  the 
disadvantages  of  this  indiscriminate  indulgence. 

Where  such  visits  are  necessary  for  the  public  service,  or  for 
any  just  right  of  the  individual  concerned,  they  will  be  authorized. 

Nor  will  reasonable  indulgence  for  the  gratification  of  a  laud- 
able curiosity  be  refused  where  the  circumstances  of  the  appli- 
cants make  those  proper,  and  where  the  public  interest  will  not 
suffer. 

But  of  the  propriety  of  these  the  General-in-Chief  will  judge, 
and,  therefore,  no  officer  will  visit  the  seat  of  Government 
unless  ordered,  or  unless  specially  permitted  so  to  do  by  the 
General-in-Chief. 

An  officer,  however,  may  pass  through  the  seat  of  Government 

when  on  duty  or  on  a  leave  of  absence,  provided  it  is  the  most 

direct  route  to  his  place  of  destination ;  but  in  such  case  he  will 

report  in  person  to  the  Adjutant  General,  and  will  not  remain 

more  than  twenty-four  hours. 

******* 

By  order  of  Major  General  Macomb : 

R.  Jones, 
Adjutant  General. 


119 
B. 

[Order  No.  79.] 

Headquarters  of  the  Army, 
Adjutant  General's  Office, 

Washington,  September  20,  1833. 

The  regulation  of  the  War  Department,  promulgated  to  the 
Army  in  order  No.  48,  has  been  modified  according  to  the  follow- 
ing direction  of  the  Secretary  of  War : 

Department  of  War,  September  SO,  1833. 

That  part  of  the  regulation  quoted  in  Order  No.  48,  which  pro- 
hibited the  ofiicers  of  the  Army  from  visiting  the  seat  of  Grovem- 
ment  without  express  permission,  was  adopted  with  a  view  to 
prevent  the  recurrence  of  difficulties,  which  had  frequently  been 
experienced  in  the  administration  of  the  concerns  of  the  Army. 
It  was  not  intended  to  impair  the  just  rights  or  reasonable 
expectations  of  the  ofiicers,  still  less  to  aflfect  that  pride  of  char- 
acter, personal  and  professional,  which  has  always  been  cherished 
in  the  American  Army,  and  without  which  their  country  would 
have  little  to  expect  from  their  services. 

The  limitation  imposed  by  the  same  regulation,  upon  the 
practice  of  granting  leave  of  absence,  will  have  a  tendency  to 
diminish  much  of  the  evil  which  the  above  prohibition  was 
intended  to  obviate.  And  should  experience  hereafter  show  that 
its  operation  is  still  so  injurious  as  to  require  further  remedy, 
while  such  remedy  will  be  applied  so  as  best  to  attain  the  object, 
it  will  be  applied  with  every  just  regard  to  the  honor  and  feelings 
of  the  officer. 

Under  these  circumstances,  therefore,  paragraph  No.  7,  under 
the  head  of  "Leaves  of  absence,"  of  the  regulation  above  referred 
to,  is  hereby  rescinded. 

Lew.  Cass. 

By  order  of  Major  General  Macomb: 

R.  Jones, 
Adjutant  General. 


120 
C. 

[General  Orders  No.  114.] 

War  Depabtment,  Adjutant  General's  Office, 

Washington,  August  Jl,  1863. 

I.  No  officer  of  the  Regular  Army  or  of  volunteers  will  hereafter 
visit  the  city  of  Washington  -without  special  permission.  Leaves 
of  absence  will  not  be  considered  as  including  the  city  of  Wash- 
ington, unless  so  stated,  and  leaves  for  that  purpose  can  only  be 
given  by  the  authority  of  the  War  Department,  thi-ough  the 
Adjutant  Greneral. 

II.  Officers  on  leave  of  absence  will  not  leave  the  limits  of  their 
military  department  without  special  permission. 

By  order  of  the  Secretary  of  War : 

E.    D.    TOWNSEND, 

Assistant  Adjutant  General. 


D. 

[General  Orders  No.  31.] 

War  Department,  Adjutant  General's  Office, 

Washington,  May  18,  1866. 

Officers  permitted  to  visit  Washington  u'hen  on  leave. 

General  Orders  No.  114,  dated  War  Department,  Adjutant 
General's  Office,  Washington,  August  21, 1862,  prohibiting  officers 
on  leave  of  absence  from  visiting  Washington  without  special 
pel-mission,  is  hereby  rescinded. 

The  attention  of  all  officers  arriving  at  the  seat  of  Government 
is  directed  to  the  regulation  requiring  them  to  report  at  the 
office  of  the  Adjutant  General,  and  record  their  names  and 
residence  in  the  city. 

By  order  of  the  Secretary  of  War : 

E.  D.  Townsend, 
Assistant  Adjutant  General. 


APPENDIX  B. 


EXTRACT  FROM   THE  JUDGE-ADVOCATE   GENERAL'S 
REMARKS  ON  REVOCABLE   LICENSES. 

The  foregoing  remarks  are  taken  from  a  discussion  on  tlie 
source  of  autliority  of  the  Army  regulations,  but  they  apply  as 
well  to  the  power  of  granting  revocable  licenses.  As  is  pointed 
out  in  that  discussion,  the  power  to  make  Army  regiilations  rests 
primarily  with  Congress,  under  its  constitutional  power,  ' '  To 
make  riiles  for  the  government  and  regulation  of  the  land  and 
naval  forces."  Nevertheless,  as  repeatedly  declared  by  the 
Supreme  Court,  the  President  has  also  the  power  to  make  Ai*my 
regulations,  and  regulations  so  made  have  the  force  of  law. 
(United  States  v.  Freeman,  3  How. ,  567 ;  Gratiot  v.  United  States, 
4  How.,  118;  United  States  v.  Eliason,  16  Pet.,  302;  Kurtz  v. 
Moflfitt,  115  U.  S.,503.) 

As  also  stated  in  the  discussion  referred  to,  Congress  might,  if 
it  ivere  practicable,  cover  by  its  legislation  the  whole  field  of  Army 
regulations,  and  leave  nothing  to  the  President,  because  the 
power  rests  primarily  with  Congress.     But  it  is  not  practicable. 

So  the  Constitution  prescribes  that  ' '  The  Congress  shall  have 
power  to  dispose  of  and  make  all  needful  rules  and  regulations 
respecting  the  territory  or  other  property  belonging  to  the  United 
States."  Were  it  practicable.  Congress  could  cover  this  whole 
field  also,  and  leave  nothing  to  the  President.  But  it  is  not 
practicable. 

"From  an  early  period  in  the  history  of  the  Goverament, " 
said  the  Supreme  Court  in  Grisar  v.  McDowell,  "it  has  beentlie 
practice  of  the  President  to  order,  from  time  to  time,  as  the  exi- 
gencies of  the  public  service  required,  parcels  of  land  belonging 
to  the  United  States  to  be  reserv^ed  from  sale  and  set  apart  for 
public  uses " — in  the  exercise  of  that  general  power,  which  the 
court  more  fully  considered  in  the  Neagle  case.  This  is  an  exer- 
cise of  a  power  which,  in  the  first  instance,  is  clearly  vested  in 
Congress ;  but,  in  the  absence  of  the  exercise  of  jurisdiction  over 

(121) 


122 

the  subject  matter  by  Congress,  it  is  legal,  because  it  is  an  exer- 
cise of  a  jjower  included  in  tlie  President's  jiower  as  Executive, 
to  "take  care  that  the  laws  be  faithfully  executed."  Can  it  be 
said  that  the  power  of  the  President  extends  to  the  setting  aside 
of  lands  for  public  purposes,  and  yet  not  to  the  making  of  rea- 
sonable regulations  regarding  them  while  they  are  under  his 
charge? 

Now,  when  the  laud  is  set  apart  for  a  military  purpose,  neces- 
sities for  gi\ang  permissions  of  different  kinds  arise — principally 
relating  to  the  requirements  and  convenience  of  the  residents  on 
the  reservation ;  and,  in  so  far  as  such  permissions  do  no  injury 
to  the  property  of  the  United  States,  the  power  of  the  President 
to  grant  them  has  not  been  questioned. 

It  is  on  the  face  of  it  impossible  for  Congress  to  provide  by 
legislation  for  every  case  which  may  arise,  because  unforeseen 
necessities  for  permissions  of  various  kinds,  often  needing  imme- 
diate action,  spring  up,  and  these  can  only  be  met  by  an  exercise 
of  the  power  of  the  ExeciTtive.  These  permissions  are  not  always 
granted  by  formal  ^^Titten  licenses.  They  may  not  be  reduced  to 
wi'iting  at  all,  but  be  entirely  informal,  oral  permissions,  to  do 
acts  which  without  them  would  constitute  trespass.  These  are 
in  effect  and  substance  revocable  licenses,  just  as  much  as  those 
expressed  in  a  wi'itten  instrument.  Indeed,  the  great  mass  of 
licenses  to  do  acts  of  varioiis  kinds  on  military  reservations  are 
informal  permissions  of  this  character.  Whether  it  be  to  enjoy 
some  continuous  j)rivilege  or  to  do  a  single  act,  makes  no  differ- 
ence. All  are  in  effect  revocable  licenses,  emanating  from  the 
same  authority.  And  the  only  advantage  of  the  revocable  license 
by  wTitten  instrument  is  that  it  is  the  most  convenient  evidence 
of  the  ijermission.  Many  acts  are,  however,  such  that  it  would 
be  absurd  to  resort  to  written  instruments  for  the  purj^ose  of 
granting  peiinission  to  do  them.  They  are  simply  orally  author- 
ized or  silently  permitted,  the  authority  l)eing  the  authority  of 
the  President,  executed  through  the  commanding  oflScer  of  the 
post.  At  every  large  post  there  are,  no  doubt,  a  great  number 
of  such  acts  done  daily  by  the  authority  of  these  imwritten  per- 
missions, or  un^vl■itten  revocable  licenses.  . 

The  power  of  the  President  probably  does  not  extend  to  the 
granting  of  licenses  for  the  doing  of  anything  which  would  be 
an  injury  to  the  property,  nor  can  he  grant  other  than  revocable 


123 

permissions,  but  there  appear  to  be  no  other  restrictions^    He 
can  not  grant  licenses  that  are  not  revocable,  so  that  if  it  be  tor 
the  erection  of  a  buil.ling,  whether  it  be  of  stone  or  wood  is 
immaterial;  in  either  case  the  license  must  be  revocable.     The 
power  is  one  to  be  exercised  by  the  President  at  his  discretion, 
subject  only  to  the  restrictions  mentioned,  and  of  course  to  such 
other  restrictions  as  may  be  imposed  by  or  be  the  result  of  acts 
of  Con-ress      The  act  of  July  38, 1892,  authorizing  the  Secretary 
of  War  to  grant  leases,  seems  to  have  been  intended  as  an  exten- 
sion, certainly  not  as  a  restriction,  of  his  power.     It  is  inappli- 
cable to  the  purposes  for  which  revocable  licenses  are  used. 
And  the  sixth  section  of  the   act  of  July  5,  1884,  "to  provide 
for  the  disposal  of  abandoned  and  useless  military  reservations, 
authorizing  the  Secretary  of  War  to  permit  the  extension  of 
roads  across  military  reservations,  the  landing  of  ferries  and  the 
erection  of  bridges  thereon,  and  to  permit  cattle  to  be  driven 
across  them,  was  apparently  intended  to  confer  power  on  him  to 
grant  more  permanent  privileges  than  revocable  licenses  give. 

A  license  is  a  bare  authority  to  do  a  certain  act  or  series  of  acts 
upon  the  land  of  the  licensor  without  possessing  or  acquiring 
any  estate  therein.     The  Judge-Advocate  General's  Ofdce  has 
always  held  that  the  Secretary  of  War  may,  by  revocable  license, 
permit  a  temporary  use,  terminable  at  his  discretion,  as  the  pub- 
lic interests  may  require,  of  United  States  lands  under  his  con- 
trol provided  such  license  conveys  no  usufructuary  interest  m 
the 'land,  and  such  use  does  not  conflict  with  the  purpose  for 
which  the  land  is  held.     (See  Dig.  Opin.  Judge-Advocate  Gen- 
eral p  4T6.)     "The  word  license,  as  applied  to  real  property, 
imports  an  authority  to  do  some  act  or  series  of  acts  upon  the 
land  of  another.     It  passes  no  interest  in  the  land  itself  and  its 
only  effect  is  to  legalize  an  act  which  in  the  absence  of  the 
license  would  constitute  a  trespass.     It  may  be  created  by  parol, 
although  a  >\Titing  defining  the  exact  nature  and  scope  of  the 
license  is  preferable. "     (Rice  on  Real  Property,  p.  505. ) 

In  1891  the  Secretary  of  War  decided  that  military  reservations 
and  lands  occupied  by  the  War  Department  are  held  and  occu- 
pied for  military  purposes  only,  and  that  no  licenses  for  then- 
use  or  occupation  would  be  given  without  authority  from  Con- 
gress unless  such  use  or  occupation  would  be  of  some  benefit  to 
the  military  service.     (Circ.  12,  Hd.p-.  of  the  Army. )     It  will  be 


134 

noticed  that  this  is  merely  the  announcement  of  a  policy,  and 
not  the  denial  of  the  existence  of  the  power.  And,  as  a  matter 
of  fact,  the  policy  thus  declared,  was  not  carried  out.  In  x)rac- 
tice  it  is  fully  recognized  that  the  Secretary  of  War  may  thus 
license  any  act  which  would  not  be  an  injury  to  the  property, 
nor  conflict  with  the  purpose  for  which  it  is  held.  This,  it  is 
believed,  is  giving  a  reasonable  application  to  the  rule  against 
the  granting  of  iTSufructuary  interests  or  permission  to  commit 
waste.  In  a  recent  case,  where  the  question  was  whether  the 
Secretary  of  War  had  authority  to  permit  the  removal  of  sand, 
it  was  said:  "It  has  heretofore  been  held  by  this  Oifice  (the 
Judge-Advocate  General's)  that  the  Secretary  of  War  has  no 
authority  to  grant  a  usufructuary  interest  in  lands  of  the  United 
States,  and  it  might  be  said  that  he  has  no  authority  to  jiermit 
waste,  i.  e. ,  a  material  alteration  or  deterioration  of  the  freehold. 
I  am  inclined  to  believe  that  a  safe  view  to  take  in  this  case  is 
that,  in  the  absence  of  any  legislation  on  the  subject,  a  revocable 
license  may  be  granted,  provided  the  act  to  be  licensed  would 
not  be  an  injury  to  the  property. " 

In  1890  the  following  question  was  submitted  to  the  Attorney- 
General  : 

"Has  the  Secretary  of  War  the  legal  authority  to  grant  a 
license,  revocable  at  the  pleasure  of  the  Secretary  of  War,  to 
construct  and  maintain  an  irrigating  ditch  through  a  United 
States  military  reservation?" 

The  Attorney-General  held : 

"It  has  been  the  practice  for  many  years  for  the  Secretary  of 
War,  and  sometimes  the  President,  as  the  files  of  your  Depart- 
ment will  no  doubt  show,  to  grant  revocable  licenses  to  individuals 
to  enter  upon  military  reservations  and  prosecute  undertakings 
there  which  may  be  beneficial  to  the  military  branch  of  the  piib- 
lic  service  as  well  as  advantageous  to  the  licensees. 

"For  many  years  a  part  of  the  tracks  of  the  Baltimore  and 
Ohio  Railroad  Company  was  laid  by  a  revocable  license  on  a 
part  of  the  land  at  Harper's  Ferry  used  by  the  United  States  for 
a  manufactory  of  arms.  Under  a  similar  license  a  part  of  the 
land  belonging  to  the  fort  at  Old  Point  Comfort  was  allowed  to 
be  used  as  a  site  for  a  hotel,  and  in  1864  President  Lincoln  gave 
a  license  of  this  kind  to  a  railroad  company  to  use  a  part  of  the 


125 

Government  land  at  Sandy  Hook,  and  in  1869  another  license 
was  granted  to  said  company  to  nse  part  of  the  same  land  'so 
long  as  it  may  be  considered  expedient  and  for  the  public  inter- 
est by  the  Secretary  of  War,  or  other  proper  ofl&cer  of  the  Gov- 
ernment, in  charge  of  the  United  States  lands  at  Sandy  Hook.' 
(Seel6  0pin.,212.) 

' '  In  this  case  the  license  applied  for  relates  to  a  military  reser- 
vation situated  in  an  arid  region,  and  therefore,  in  view  of  the 
advantage  to  Fort  Selden  of  the  use  of  this  w^ater,  and  in  view 
of  the  frequent  exercise  of  a  similar  power  by  granting  such 
licenses  as  occasions  have  arisen  through  so  many  years,  it  seems 
clear  that  such  license  may  be  granted,  the  same  to  be  under 
well-considered  restrictions,  and  revocable  at  the  will  and  pleas- 
ure of  the  Secretary  of  War. " 

In  the  joint  resolution  introduced  by  Mr.  Fenton,  at  the  second 
session  of  the  Fifty-foui'th  Congi-ess,  "relative  to  the  practice  of 
gi'anting  permits  for  the  occupancy  or  use  of  military  reserva- 
tions for  non-military  puri^oses,"  and  referred  to  the  Committee 
on  Military  Affairs  of  the  House  of  Representatives,  but  not 
reported,  there  was  this  recital :  ' '  Whereas  in  the  absence  of  spe- 
cific legislation  relating  thereto,  the  custom  has  gradually  ob- 
tained, in  the  War  Department,  of  granting  'revocable  licenses,' 
permitting  citizens  to  occupy  or  use  military  reservations  for 
personal  or  non-military  jjurposes."  But,  as  we  have  seen,  the 
granting  of  these  licenses  rests  on  higher  authority  than  the  cus- 
tom of  the  War  De]iartment. 

And  it  may  be  added,  on  the  strength  of  a  decision  of  the  Sii- 
preme  Court  in  Benson  v.  United  States,  146  U.  S.,  325,  that  the 
temporary  appropriation  of  a  locality  on  a  military  reservation 
to  a  non-military  purpose  does  not  have  the  effect  of  a  diversion 
of  the  reservation  from  the  purpose  for  which  it  is  held.  In  that 
case  Mr.  Justice  Brewer  said,  that  the  entire  tract  in  question 
having  been  legally  reserved  for  military  purposes,  and  the  char- 
acter and  purposes  of  its  occupation  ha\ang  been  oflficially  and 
legally  established  by  that  branch  of  the  Government  which  has 
control  over  such  matters,  it  is  not  open  to  the  courts,  on  a  ques- 
tion of  jurisdiction,  to  inquire  what  may  be  the  actual  uses  to 
which  any  portion  of  the  reserve  is  temiiorarily  put. 

The  object  of  the  joint  resolution  mentioned  was  to  make  it 
unlawful  ' '  to  issue  a  license  or  permit  to  any  religious  denomi- / 


126 

nation  or  sect  to  erect,  or  to  exclusively  occupy,  a  church  edifice 
or  chapel  for  sectarian  purposes  on  any  military  reservation  of 
the  United  States,"  and  to  require  the  Secretary  of  War  to  re- 
voke all  such  licenses  already  granted. 

Of  course  such  action  would  be  entirely  within  the  power  of 
Congress.  Congress  has  absolute  control  over  the  matter.  All 
that  is  claimed  is,  that  when  Congress  does  not  act  the  President 
has  power  to  act.  So  far  as  regards  the  "  sectarian  purpose  " 
for  which  a  license  may  be  required,  it  is  evident  that  such  pur- 
pose does  not  affect  the  power  to  grant  the  license,  but  the  policy 
of  granting  it  only.  In  the  absence  of  action  by  Congress,  the 
exercise  of  the  power  rests  in  the  discretion  of  the  President, 
and  the  purpose  can  be  no  restriction  on  his  discretion,  except 
in  so  far  that  it  must  not  be  incompatible  with,  that  is,  an  inter- 
ference wdth  or  an  obstruction  to,  the  general  use  for  which  the 
land  is  held. ' 


'But  see  opinion  of  Attorney  General  of  May  19,  1897,  in  which  it  is  said:  "West 
Point  is  Government  i)roi)erty,  and  lience  conveyances  of  it  or  rises  of  it  can  only  be 
authorized  by  Congress."     This,  however,  has  not  been  given  general  effect. 

November  11,  1897,  the  War  Department  issued  the  following: 

REGULATIONS  GOVERNING  THE  USE  AND  OCCUPATION  OF  LANDS  WITHIN 
THE  LIMITS  OF  THE  MILITARY  RESERVATION  OF  FORT  ST.  MICHAEL, 
ALASKA. 

War  Department,  Wasliimjtoii,  October  JO,  1S07. 

1.  By  authority  of  tho  President,  the  land  known  as  St.  Michael  Island,  Alaska,  with 
all  contiguous  land  and  islands  within  one  hundred  miles  of  the  locution  of  the  rtagstaff 
of  the  present  garrison  on  that  island,  is  set  aside  from  the  public  lands  of  the  Territory 
of  Alaska  and  declared  a  military  reservation. 

Parties  who  have,  prior  to  the  receipt  of  this  order,  located  and  erected  buildings  on 
the  land  so  reserved,  will  not  be  disturbed  in  their  use  of  lauds,  buildiug.s,  and  improve- 
ments, nor  in  the  erection  of  structures  needed  for  their  business  or  residence. 

2.  The  military  reservation  above  declared,  and  the  military  post  locateil  thereon,  will 
be  known  a.s  Fort  !>l.  Michael,  and  will  bo  under  the  control  and  supervision  of  the  com- 
manding ofiBcer  of  the  troops  there  stationed. 

R.  A.  ALGER, 
Secretary  of  War. 

In  the  absence  of  other  provision  of  law  and  of  all  local  civil  officials  within  the  limits 
of  country  surrounding  the  island  of  St.  Michael,  and  the  mouth  of  the  Yukon  River, 
the  foregoing  described  reservation  has  been  established  for  the  secuiity  of  life  and  prop- 
erty, the  preservation  of  order,  and  the  protection  of  property  and  business  interests. 
Proper  persons,  associations,  or  corporations  already  located  on,  or  desiring  to  enter 
upon  and  conduct  legitimate  business  enterprises  within  the  limits  of  this  military  res- 
ervation, will  observe  the  following  regulations: 

1.  Applications  for  permission  must  be  accompanied  by  testimonials  of  good  character 
and  standing  and  be  made  in  writing,  addressed  to  the  Secretary  of  War,  reciting  the 
nature  of  the  business  to  be  conducted;  the  location,  as  nearly  as  possible,  on  unoccu- 
pied land  within  the  reservation;  the  area  of  land  necessary;  number  and  character  of 
buildings,  etc.,  to  be  erected,  and  probable  date  when  occuiiancy  is  to  bo  commenced  and 
terminated.  Those  located  on  this  reservation  at  the  time  the  reservation  was  made  will 
in  like  manner  present  their  application  for  permits,  and  thi>  commanding  officer  will 
not  disturb  them  in  their  use  and  occupancy  in  conformity  to  these  regulations  until  the 
action  of  the  Secretary  of  War  ou  their  application  is  known. 


127 


2  The  permit  to  be  iBsueii  1>v  the  Socrotary  <.f  War  will  .losmbo  tli-  prrw.ns,  business, 
location,  etc.,  and  will  authoviz.'  th.'  -rant-TS  to  ent.T  up,,!!  tlir  ros.Tvat.on  at  tli.^  ..ra- 
tion named,  and  maintain  tlio  sprcificl  l.uj^iness,  and  none  oilier.  \\  luT(.  a  dchnitr  bxa- 
tiou  can  not  be  ijiven  in  tbc  permit,  authority  will  be  given  to  the  eommandinf;  uttieer 
of  B^rt  St  Michael  to  authorize  an  a|ipropriate  location;  but  no  permission  will  be  ^'lven 
to  use  lan.l  that  was  included  under  the  ori-inal  order  as  located  and  used,  and  no  per- 
mit will  be  given  to  locate  on  the  land  set  apart  for  buildings,  wharves,  larade,  and  drill 
grounds  for  the  post  of  Fort  St.  Michael.  A  plat  showing  auth,.n/.ed  locations  and 
grounds,  with  the  name  or  names  of  the  holders  of  permits,  will  be  kept  in  the  oflice  of 

"'.'.■  'Thispermit  wu[not  be  negotiable  and  w  ill  be  of  no  value  or  effect  until  presented 
to"and  recorded  by  the  commanding  officer  of  Fort  St.  Michael,  and  the  l,..-ation  staked 
out  hv  him  It  w  ill  not  be  transferable  without  the  approval  of  the  Secretary  o  W  ar, 
except  where  both  parties  to  the  transfer  are  on  the  ground  and  one  desires  to  dispose 
of  his  interest,  in  which  event  the  commanding  officer  of  Fort  St.  Michael  may  authorize 
the  transfer,  I'eporting  his  action  to  the  War  Department  It  will  give  no  right  or  title 
to  ownership  of  lands  occupied  and  is  revocable  at  the  will  ot  the  Secretary  ol  W  ar 

4  Applications  for  permission  to  sell  any  improvements  made  through  virtue  of  the.se 
permfts  must  be  made  through  the  cminianding  officer  of  Fort  St.  Michae  to  the  Secre- 
tary of  War  and  will  only  he  approved  on  the  same  conditions  on  which  a  permit  is 

'"5^"pereoii^"aLociations,  or  corporations  occupying  lands,  buildings,  or  privileges 
uuderthe.se  permits  will  be  subject  at  all  times  to  such  PoHce  K-gulations  as  maybe 
imposed  from  time  to  time  by  the  commanding  officer  of  Fort  St.  Michael  or  higher 

'^'e"*  Any  modification  of  this  permit,  after  use,  must  be  applied  for  in  writing  and  for- 
warded through  the  commanding  officer  of  Fort  St.  Michael  for  the  action  of  the  becre- 
tirv  of  War  •  notice  of  a  proposed  termination  of  the  permit  will  be  given  by  the  grantee 
at  least  thirty  davs  before  removal,  and  upon  removal  fn.m  the  reservation  the  perniit 
will  be  surrendered  to  the  commanding  officer  of  Fort  St.  Michael;  and  the  location 
must  be  left  by  the  occupants  in  good  sanitary  and  police  condition. 

7  In  case  of  naturallv  restricted  landings,  sites  for  buildings,  ship-yards,  etc.,  no 
monopoly  will  be  given  to  any  person  or  corporation,  and  no  permit  will  be  construed 
to  do  this  and  all  disagreements  between  holders  of  permits  will,  after  a  careful  hearing 
by  him,  be  settled  by  the  commanding  officer  of  Fort  St.  Michael.  „,.,.,,u,i 

8  No  retail  of  distilled  spirits  on  the  reservation  will  be  allowed  ;  but  this  piohibi- 
tion  shall  not  include  light  wines  or  beer.     (Section  1955,  Revised  Statutes  ;  act  approved 


Mav  n,  1884.1 


9)  It  'is  to  be  understood  that  these  permits  are  issued  subject  to  any  subsequent  legis- 
lation of  Congress. 


APPENDIX    C. 


EXTRACT  FROM  THE  OPINION  OF  HON.  J.  M.  DICKIN- 
SON, ACTING  ATTORNEY-GENERAL, 


WITH    REFERENCE  TO   THE 


Constitutionality  of  the  Act  of  Congress  giving  to  the  Secretary 
of  War  certain  powers  in  regard  to  unreasonable  obstruc- 
tions to  navigation. 


In  this  case  the  Secretary  of  War  is  made  a  special  tribunal  to 
adjudicate  facts. 

It  is  competent  for  the  legislature  to  establish,  independent  of 
the  courts,  special  tribunals  whose  judgment  shall  be  final. 

The  taxing  interests  of  this  country  involve  by  far  the  largest 
(luestion  so  far  as  value  is  concerned.  The  assessment  of  prop- 
erty is  necessarily  intrusted  to  special  tribunals,  which  operate 
constantlv  and  upon  a  vast  scale.  They  are  composed  of  nonju- 
dicial officers,  and  if  they  pursue  the  law  their  conclusions  are 

final. 

In  Nishimura  Ekiu  v.  United  States,  143  U.  S.,  651,  and  Fong 
Yue  Ting  v.  United  States,  149  U.  S.,  698,  and  Lem  Moon  Sing 
V.  United  States,  158  U.  S.,  538,  it  was  held  that  Congress  might 
intrust  to  executive  officers  the  final  determination  of  facts  upon 
which  foreigners  might  be  sent  out  of  or  excluded  from  this 
country,  and  that  their  conclusions  could  not  be  reexamined  by 

any  court. 

Congi-ess  has  repeatedly  passed  laws  committing  the  execution 
of  acts  in  regard  to  the  admission  of  aliens  into  the  United  States 
to  the  Secretary  of  the  Treasury,  collectors  of  customs,  and  to 
inspectors  acting  under  their  authority.  (See  acts  of  March  3. 
1875,  chapter  141  (18  Stat.,  477) ;  August  3,  1883,  chapter  376  (33 
Stat!,  314) ;  February  33,  1887,  chapter  330  (34  Stat.,  414) ;  Octo- 
ber 19,  1888,  chapter  1310  (35  Stat.,  566).) 

13l'J0 'J  <^-->) 


130 

By  section  3,  23  Stat. ,  214,  and  in  similar  laws,  the  Secretary 
of  the  Treasury  was  authorized  to  establish  rules  and  regulations 
and  to  issue  instructions  to  carry  out  these  and  other  immigra- 
tion laws  of  the  United  States. 

In  Enterprise  Saving  Association  r.  Zumstein,  67  Fed.  Rep. , 
1000,  it  was  held  by  the  circuit  court  of  appeals  of  the  sixth  cir- 
cuit, in  an  opinion  delivered  by  Judge  Lurton,  and  concurred  in 
by  Judges  Taf t  and  Severens,  that  in  enforcing  the  postal  laws 
against  lotteries  it  was  competent  for  Congress  to  intrust  to  the 
head  of  the  Post  Office  Department  the  determination  of  the 
question  as  to  what  was  a  lottery. 

Congress  can  only  legislate  in  a  general  way,  and  large  powers 
are  necessarily  intrusted  to  the  different  departments— such,  for 
instance,  as  the  supervising  power  given  to  the  Secretary  of  the 
Interior  over  questions  of  patents  and  relations  to  Indians  and 
the  public  lands.  It  has  been  held  that  he  can  set  aside  a  survey 
and  order  another  survey  and  issue  a  patent  thereon,  which  is 
the  exercise  of  judicial  power.  This  right  arises  from  the  super- 
vising power  given  him  under  the  statute,  and  the  courts  have 
invariably  sustained  it,  and  in  speaking  of  this  class  of  powers 
have  said : 

"  It  is  obvious,  it  is  common  knowledge,  that  in  the  adminis- 
tration of  such  large  and  varied  interests  as  are  intrusted  to  the 
Land  Department,  matters  not  foreseen,  equities  not  anticipated, 
and  which  are,  therefore,  not  provided  for  by  express  statute, 
may  sometimes  arise,  and,  therefore,  that  the  Secretary  of  the 
Interior  is  given  that  superintending  and  supervising  power  which 
will  enable  him,  in  the  face  of  these  unexpected  contingencies,  to 
do  justice."  (Williams  v.  United  States,  138  U.  S.,  524;  Knight 
V.  United  States  Land  Assn.,  142  U.  S.,  181.) 

In  McCulloch  v.  Maryland,  4  Wheat.,  316,  421,  Chief  Justice 
Marshall  said ; 

' '  The  sound  construction  of  the  Constitution  must  allow  to  the 
National  Legislature  that  discretion,  with  respect  to  the  means 
by  which  the  powers  it  confers  are  to  be  carried  into  execution, 
which  will  enable  that  body  to  perform  the  high  duties  assigned 
to  it  in  the  manner  most  beneficial  to  the  people.  Let  the  end  be 
legitimate,  let  it  be  within  the  scope  of  the  Constitution,  and  all 
means  which  are  appropriate,  which  are  plainly  adapted  to  that 


end,  which  are  not  prohibited  hut  consist  wth  the  Icttei'  and 
spirit  of  the  Constitution,  are  constitutional." 

It  has  now  been  established  beyond  controversy  that  C<)n<;ress 
has  the  power  to  inccn-porate  national  banks  and  clothe  them  with 
large  discretionary  powers  and  for  the  ptu-pose  of  accomplishing 
what  Congress  itself  might  directly  do. 

This  power  was  maintained  in  McCnlloch  v.  Maryland,  4 
Wheat.,  316,  and  in  Osborn  r.  United  States  Bank.  9  Wheat.,  7'SH, 
mainly  upon  the  ground  that  it  was  an  appropriate  means  tor 
cari-j-ing  on  the  money  transactions  of  the  Government.  (Legal 
Tender  Case,  110  U.  S.,  445.) 

In  re  The  Laura,  114  U.  S.,  411,  although  the  pardoning  power 
is,  by  the  Constitution,  vested  in  the  President,  the  court  held 
that  an  act  authorizing  the  Secretary  of  the  Treasury  to  remit 
fines  and  penalties  incurred  by  a  steam  vessel  was  valid,  and  it 
held  that  to  determine  other\vise  would  be  to  overthrow  the  prac- 
tice which  had  been  observed  and  acquiesced  in  for  nearly  a  cen- 
tury. 

In  Dorsheimer  r.  United  States,  7  Wall.,  1(56,  it  was  held  that 
such  power  intrusted  to  the  Secretary  of  the  Treastiry  is  one  for 
the  exercise  of  his  discretion  in  a  matter  intnisted  to  him  alone, 
and  that  it  admits  of  no  appeal  to  any  court. 

In  all  those  cases  in  which  it  is  held  that  executive  officers  of 
the  Government  will  not  be  controlled  by  the  court  in  matters 
in  which  they  have  to  exercise  judgment  or  discretion,  it  is  ap- 
parent that  large  powers  are  intiiisted  by  Congress  under  the  acts 
investing  them  with  authority,  and  that  they  really  exercise  in 
this  way,  by  delegation,  and  necessarily  so,  for  the  purpose  of 
carrying  on  the  vast  affairs  of  the  Government  and  its  details, 
authority  which  in  a  strict  sense  pertains  to  Congi-ess.  (See 
Decatur  v.  Paulding,  14  Pet. ,  497-514 ;  United  States  v.  Guthrie, 
17  How.,  284;  United  States  v.  The  Commissioners,  5  Wall.,  563; 
Litchfield  r.  Register  and  Receiver,  9  Wall. ,  575-577 ;  Carrick  v. 
Lamar,  116  U.  S..  426.) 

In  United  States  v.  Breen,  40  Fed.  Rep. ,  402,  it  was  held  that 
Congress  can  authorize  the  Secretary  of  War  to  make  rules  and 
regulations,  and  can  make  it  a  misdemeanor  to  violate  these  rules 
when  so  made. 

In  United  States  r.  Bailey,  9  Pet..  238.  it  was  held  that  the 
crime  of  perjury,  which  was  defined  by  statute,  could  be  com- 


132 

luitted  Ijy  taking  an  oath  in  conformity  with  a  mere  regulation 
of  the  Treasury  Department. 

In  Caha  v.  United  States,  152  U.  S.,  21'J,  in  commenting  npoii 
this  decision,  the  court  said : 

'"It  was  held  that  the  Secretary  had  power  to  establish  the  reg- 
ulation, and  that  the  effect  of  it  was  to  make  the  false  aifidavit 
before  the  jiistice  of  the  peace  perjury  within  the  scope  of  the 
statixte,  and  this  notwithstanding  the  fact  that  such  justice  of 
the  peace  was  not  an  officer  of  the  United  States." 

In  the  Caha  case,  the  court  upheld  an  indictment  for  perjury, 
which  grew  out  of  proceedings  instituted  in  accordance  with 
regulations  of  the  Interior  Department. 

These  cases  and  the  case  under  consideration  differ  from  that 
of  United  States  v.  Eaton,  144  U.  S.,  677,  in  which  the  court 
held  that  a  failure  to  conii)ly  with  regulations  made  by  the  Com- 
missioner of  Internal  Revenue  could  not  be  punished.  The  rea- 
son was  that  the  statute  had  not  made  such  refusal  an  offense. 

The  court  said : 

'•It  is  necessary  that  a  sufficient  statutory  authority  should 
exist  for  declaring  any  act  or  omission  a  criminal  offense ;  and 
we  do  not  think  that  the  statutory  authority  in  the  present  case 
is  sufficient.  If  Congress  intended  to  make  it  an  offense  for 
wholesale  dealers  in  oleomargarine  to  omit  to  keep  books  and 
render  returns,  as  recpiired  by  regulations  to  be  made  by  the  Com- 
missioner of  Internal  Revenue,  it  would  have  done  so  distinctly, 
in  connection  with  an  enactment  such  as  that  above  recited,  made 
in  section  41  of  the  act  of  October  1,  1890. 

' '  Regulations  prescribed  by  the  President  and  by  the  heads  of 
departments,  under  authority  granted  by  Congress,  may  be  regu- 
lations prescribed  by  law,  so  as  lawfully  to  support  acts  done 
under  them  and  in  accordance  with  them,  and  may  thus  have,  in 
a  proper  sense,  the  force  of  law ;  but  it  does  not  follow  that  a 
thing  required  by  them  is  a  thing  so  required  by  law  as  to  make 
the  neglect  to  do  the  thing  a  criminal  offense  in  a  citizen  where 
a  statute  does  not  distinctly  make  the  neglect  in  (juestion  a  crimi- 
nal offense."     (p.  688. ) 

The  case  under  discussion  has  the  element  wliich  was  lacking 
in  the  Eaton  case,  for  a  statute  has  distinctly  made  the  neglect  in 
(question  a  misdemeanor. 


133 

The  act  of  July  5,  1884,  section  :3,  makes  the  Commissioner  of 
Navigations  finding  conclusive  on  all  questions  of  iuteri^retation 
growing  out  of  the  execution  of  the  laws  relating  to  the  collec- 
tion of  tonnage  tax.  (N.  G.  L.  S.  S.  Co.  v.  Hedden,  4:i  Fed. 
Rep.,  17-25.) 

Among  the  powers  confen-ed  upon  Congress  by  the  eighth 
section  of  the  first  ai'ticle  of  the  Constitution  are  the  following: 
To  provide  and  maintain  a  navy. 

To  make  rules  for  the  government  and  regulation  of  the  land 
and  naval  forces. 

It  was  held  in  Djnies  v.  Hoover.  18  How..  20.  and  the  decision 
has  never  been  questioned,  that,  imder  this  provision  of  the  Con- 
stitution, Congi-ess  has  the  authority  to  establish  courts-martial. 
It  was  further  held  that  the  decision  of  the  court-martial  in  a 
matter  where  it  has  jurisdiction  is  final  and  cannot  be  reviewed 
by  the  courts.  (20  How..  83:  Johnson  r.  Sayre,  158  U.  S.,  109.) 
Congi-ess,  in  establishing  courts-martial,  provided  that  the 
Secretary  of  the  Navy  is  authorized  to  establish  '-regulations  of 
the  Navy,"  with  the  approval  of  the  President.  (12  Stat.,  565; 
sec.  1547,  Rev.  Stat.) 

Pursuant  to  this  authority  "  regulations  for  the  administration 
of  law  and  justice"  were  issued  on  the  15th  of  April.  1S70. 

It  has  been  held  that  such  regulations  have  the  force  of  law. 
(Gratiot  r.  United  States,  4  How.,  80:  Ex  parte  Reed,  100  U.  S., 

22.) 

Thus  the  legislative  power  is  not  exercised  in  detail.  l)ut  a  court 
is  established  in  piirsuance  of  the  power  conferred  upon  Con- 
gress, and  the  Secretary  of  the  Navy  is  clothed  with  the  power 
of  making  regulations  to  control  the  court. 

This  is  one  of  the  many  instances  in  which  it  is  essential  for 
the  operations  of  a  great  Government  that  matters  of  detail  be 
intrusted  by  the  legislative  department  to  executive  officers  for 
the  purpose  of  giving  effect  to  legislative  acts. 

By  article  84.  Revised  Statutes,  section  1624,  the  proceedings 
of  summary  courts-martial  are  to  be  conducted  under  such  forms 
and  rules  as  may  be  prescribed  by  the  Secretary  of  the  Navy. 
with,  the  approval  of  the  President. 

Here  Congress  has  constituted  a  coiirt  and  it  has  delegated  to 
an  executive  officer  authority  to  establish  rules  for  its  procedure. 


134 

By  section  1547,  Revised  Statiites,  the  regulations  issued  by  the 
Secretary  of  the  Navy,  and  as  they  might  thereafter  be  altered 
by  him,  with  the  approval  of  the  President,  are  recognized  as 
the  regulations  of  the  Navy. 

In  pursuance  of  these  regulations  Sayre  became  ' '  a  person  in 
the  naval  service  of  the  United  States. "  He  was  tried  by  a  court- 
martial,  and  the  Supreme  Court  refused  to  review  its  findings. 
(Johnson  r.  Sayre,  loS  U.  S. ,  117.) 

By  an  act  of  June  23,  1874  (18  Stat.  L.,  237,  240),  an  appropria- 
tion was  made  to  be  expended  under  the  direction  of  the  Secre- 
tary of  War  for  the  repairs,  preservation,  and  completion  of 
certain  public  works  and  niter  alia  "for  the  improvement  of  the 
harbor  of  Savannah." 

A  like  appropriation  -was  made  by  the  act  of  March  3,  1875  (IS 
Stat.,  459),  "for  the  improvement  of  the  harbor  of  Savannah, 
Ga." 

Neither  of  these  acts  directed  the  manner  in  which  these 
appropriations  shoxild  be  expended.  The  mode  of  improving  the 
harbor  was  left  to  the  discretion  of  the  Secretary  of  War. 

The  legislative  department  declared  that  the  improvement 
should  be  made,  and  devolved  the  determination  of  what  would 
or  woiild  not  be  an  improvement  iipon  the  Secretary  of  War. 

It  was  contended  that,  while  Congress  had  the  power  to  author- 
ize the  construction  of  a  specific  work,  it  could  not  invest  the 
Secretary  of  War  with  such  large  discretion,  and  that  for  this 
reason  the  act  was  void.  The  Supreme  Court  sustained  the  act 
in  South  Carolina  r.  Georgia,  93  U.  S.,  13. 

In  that  case,  acting  under  the  commerce  clause,  Congress 
authorized  an  improvement.  It  empowered  the  Secretary  of 
War  to  determine  what  would  or  would  not  be  an  improve- 
ment, and  so  the  act  could  not  be  made  effective  without  the 
action  of  the  Secretary  of  War.  If  he  determined  the  character 
of  the  improvement,  that  was  final  and  the  act  operated  upon  it. 

In  this  case.  Congress  makes  the  obstruction  to  navigation  a 
misdemeanor.  It  devolves  upon  the  Secretary  of  War  to  deter- 
mine when  there  is  an  obstruction  and  to  give  the  party  a  hear- 
ing upon  the  investigation.  When  this  special  tribunal  has 
determined  that  there  is  an  obstruction,  then  the  act  operates 
upon  it  as  in  the  former  case. 


135 

In  Miller  r.  Mayor  of  New  York,  109  U.  S.,  385,  393,  395,  it 
appeared  that  Congress  authorized  the  Iniildiug  of  a  liridge  over 
a  river,  hut  the  particular  bridge  authorized  was  such  as  should 
thereafter  be  approved  by  the  Secretary  of  War.  After  the  Sec- 
retary of  War  fixed  by  his  approval  the  character  of  the  bridge 
which  was  not  an  obstruction  to  navigation,  then  the  act  oper- 
ated upon  it  and  authorized  the  building  of  the  bridge.  Until 
then  the  legislative  license  did  not  go  into  effect.  Here  was  a 
complete  act  in  the  abstract,  but  its  operation  in  the  concrete 
was  dependent  upon  the  determination  of  facts  by  the  special 
tribunal.  It  was  contended  that  this  was  an  unlawful  delegation 
of  the  power  vested  in  Congress.  The  court  held  to  the  contrary, 
saying : 

"By  submitting  the  matter  to  the  Secretary,  Congress  did  not 
abdicate  any  of  its  authority  to  determine  what  should  or  should 
not  be  deemed  an  obstruction  to  the  navigation  of  the  river.     It 
simply  declared  that,  upon  a  certain  fact  being  established,  the 
bridge  should  be  deemed  a  lawful  structure,  and  employed  the 
Secretary  of  War  as  an  agent  to  ascertain  that  fact.     Having 
power  to  regulate  commerce  with  foreign  nations  and  among  the 
several  States,  and  navigation  being  a  branch  of  that  commerce, 
it  has  the  control  of  all  navigable  waters  between  the  States, 
or  connecting  \\nth  the  ocean,  so  as  to  preserve  and  protect  their 
free  navigation.     Its  power,  therefore,  to  determine  what  shall 
not  be  deemed,  so  far  as  that  commerce  is  concerned,  an  obstruc-- 
tion,  is  necessarily  paramount  and  conclusive.     It  may  in  direct 
terms  declare  absolutely,  or  on  conditions,  that  a  bridge  of  a  par- 
ticular height  shall  not  be  deemed  such  an  obstruction ;  and,  in 
the  latter  case,  make  its  declaratic^n  take  effect  when  those  con- 
ditions are  complied  with.     The  act  in  question,  in  requiring  the 
approval  of  the  Secretary  before  the  construction  of  the  bridge 
was  permitted,  w^as  not  essentially  different  from  a  great  mass 
of  legislation  directing  certain  measures  to  be  taken  upon  the 
happening  of  particular  c-ontingencies  or  the  ascertainment  of 
particular  information.     The  execution  of  a  vast  niimber  of 
measures  authorized  by  Congress,  and  carried  out  under  the 
direction  of  heads  of  departments,  would  be  defeated  if  such 
were  not  the  case.     The  efiicicnry  of  an  act  as  a  declaration  of 
legislative  will  must,  of  course,  come  from  Congress,  but  the 
ascertainment  of  the  contingency  upon  which  the  act  shall  take 


136 

effect  may  be  left  to  such  agencies  as  it  may  designate. "     (South 
Carolina  v.  Georgia,  93  U.  S.,  13.) 

By  section  2380,  Revised  Statutes— 

"  The  President  is  authorized  to  reserve  from  the  public  lands, 
whether  surveyed  or  unsurveyed,  town  sites  on  the  shores  of 
harbors,  at  the  junction  of  rivers,  important  portages,  or  any 
natural  or  prospective  centers  of  population." 

Following  strict  construction  this  would  be  a  delegation  by 
Congress  of  its  legislative  power. 

In  Currier  v.  "West  Side  Elevated  Patent  Ry.  Co.,  6  Blatch., 
487,  it  was  held  that  authority  conferred  upon  commissioners  to 
approve  an  experimental  elevated  railroad,  and  making  such 
approval  essential  to  the  continuance  in  existence  of  the  railroad, 
was  not  a  delegation  of  legislative  power: 

The  creation  of  a  railroad  commission  to  fix  reasonable  tolls 
for  freight  and  passenger  transportation  is  not  an  unconstitu- 
tional delegation  of  legislative  powers.  (Georgia  v.  Smith,  70 
Ga.,  C94.) 

Neither  is  giving  power  to  the  governor  to  make  pilotage  reg- 
ulations.    (Martin  v.  Witherspoon,  135  Mass.,  175.) 

The  statute  providing  for  the  civil  service  authorizes  the  Com- 
missioners and  the  President  to  make  rules  for  carrying  the  act 
into  effect,  and  the  President  is  authorized  to  prescribe  such 
regulations  for  the  admission  of  persons  into  the  civil  service  of 
the  United  States  as  may  best  promote  the  efficiency  thereof. 
(23  Stat.,  403;  sec.  1753,  Rev.  Stat.) 

Under  the  act  of  February  8,  1887  (24  Stat.,  388),  power  is  con- 
ferred upon  the  President,  when  he  shall  have  determined  cer- 
tain facts,  to  allot  land  in  severalty  to  Indians  on  reservations. 

In  Field  v.  Clark,  143  U.  S.,  649,  it  was  held  that  Congress 
might  confer  authority  upon  the  President  to  suspend  by  proc- 
lamation the  operation  of  the  law,  affecting  the  importation  of 
certain  articles,  upon  his  determination  that  any  country  pro- 
ducing such  articles  imposed  duties  upon  the  agricultural  or 
other  products  of  the  United  States  which,  in  his  opinion,  were 
reciprocally  unequal  or  unreasonable. 

The  court  said : 

"Legislative  power  was  exercised  when  Congress  declared 
that  the  suspension  should  take  effect  upon  a  named  contingency. 


137 


What  the  President  was  required  to  do  was  simply  m  execution 
of  the  act  of  Congress.  It  was  not  the  making  of  law.  He  was 
the  mere  agent  of  the  law-making  department  to  ascertam  and 
declare  the  event  upon  which  its  expressed  will  was  to  take 
effect."     (p.  693.) 

I  am  of  the  opinion  that  the  sections  in  question  are  not  an 
unconstitutional  delegation  of  the  legislative  function. 


APPENDIX  P). 


EXTRACT  FROM  THE  REGULATIONS  FOR  THE  GOV- 
ERNMENT OF  THE  REVENUE-CUTTER  SERVICE. 

ADMINISTRATION   AND   DISCIPLINE. 

Exercise  of  Authority. 

681.  All  persons  in  the  Revenue-Cutter  Service  are  required 
and  strictly  enjoined  to  properly  observe  and  obey  the  lawful 
orders  of  their  superiors,  and  to  use  their  utmost  exertions  to 
carry  such  orders  into  effect  with  promptitude  and  zeal.  They 
shall  show  to  their  superiors  all  proper  deference  and  respect. 

682.  Superiors  of  every  grade  are  forbidden  to  oppress  or  mal- 
treat those  imder  their  command  by  tyrannical  or  capricious 
conduct,  or  abusive  langiiage.     Authority  over  subordinates  will 
be  exercised  with  firmness,  kindness,  and  justice,  and  each  per 
son  shall  set  an  example  of  morality  and  devotion  to  duty. 

68;^.  Punishments  shall  be  in  strict  (^mformity  to  law  and  in 
accordance  with  the  usages  of  the  sea  service,  and  will  follow 
the  offense  as  promptly  as  circumstances  will  permit. 

684.  In  order  to  avoid  unnecessary  recourse  to  boards  of  in- 
vestigation, it  is  directed  that  when  an  officer  shall  be  reported 
for  grave  misconduct  to  his  immediate  commanding  officer  the 
latter  shall  institute  a  careful  inquiry  into  the  circumstances  on 
which  the  complaint  is  founded.  To  this  end  he  shall  call  upon 
the  complainant  for  a  written  statement  of  the  case,  together 
with  a  list  of  his  witnesses,  and  such  other  information  as  may 
have  a  proper  bearing  upon  the  charge.  He  shall  also  call  upon 
the  accused  for  such  counter-statement  as  he  may  wish  to  make. 

685.  Officers  making  either  complaints  or  explanations  shall 
confine  themselves  exclusively  to  the  facts  of  the  case,  and  shall 
neither  express  an  opinion  nor  impiign  the  motives  of  the  oppo- 
site party. 

(139) 


140 

686.  If,  after  the  investigation  of  a  report  against  an  officer, 
the  commanding  officer  shall  not  deem  the  offense  one  requiring 
the  action  of  a  board  of  investigation  he  shall  himself  take  such 
action  as  he  may  deem  necessary  within  the  limits  of  regulation 
and  law. 

687.  If,  upon  such  investigation,  the  commanding  officer  shall 
be  satisfied  that  the  charge  is  such  as  to  call  for  the  action  of  the 
Department,  he  shall  transmit  to  the  Secretary  of  the  Treasury 
a  report  embracing  the  charges  and  specifications  relating  to  the 
case.  Under  such  circumstances  the  accused  may  be  continued 
under  suspension  or  arrest  to  await  the  decision  of  the  Secretary 
of  the  Treasury. 

688.  Should  the  decision  of  the  Secretary  he  that  no  trial  take 
place  the  accu.sed  shall  be  at  once  restored  to  duty.  But  if  it  be 
decided  that  the  acctised  shall  be  brought  to  trial  a  board  of  in- 
vestigation shall  be  convened  for  that  puiiiose  as  soon  as  the 
interests  of  the  public  service  will  allow. 

689.  Whenever  an  accusation  is  made  against  an  officer,  either 
by  report  or  indorsement  upon  a  communication,  or  charges  are 
preferred  against  him,  a  copy  of  such  report,  indorsement,  or 
charges  shall  be  furnished  at  tlie  time  to  the  officer  accused. 

690.  An  officer  is  strictly  forbidden  to  criticise  or  impugn  the 
character,  competency,  or  motives  of  another  officer  in  any 
private  letter  directed  to  an  officer  or  person  connected  with  the 
administration  of  the  Treasury  Department. 

691.  On  complaint  being  made  against  an  officer,  and  in  every 
case  reqiiiring  immediate  decision,  a  commanding  officer  may 
suspend  or  place  in  arrest  an  inferior  not  longer  than  ten  days, 
unless  a  further  period  is  necessary  to  bring  the  offender  to  trial. 

692.  Officers  are  not  to  be  suspended  for  light  or  trivial  of- 
fenses, bttt  for  such  the  commanding  officer  may  exjjress  his 
disapprobation,  which,  in  most  cases,  will  answer  the  ptirpose  of 
maintaining  discipline.  An  admonition  or  caution  in  the  ordi- 
nary course  of  duty  shall  not  be  considered  as  a  reprimand  in  the 
sense  of  punishment. 

693.  The  captain  of  a  vessel  or  other  competent  authority  may 
release  temporarily  and  put  on  duty  an  officer  xinder  suspension 
or  arrest  should  an  emergency  of  the  ser%'ice  or  other  sufficient 
cause  make  such  measure  necessary.  This  temporary  release 
shall  not  be  a  bar  to  any  subseqtient  investigation  or  trial. 


141 

694    When  a  coumianding  officer  shall  suspend,  or  place  in 
arrest,  an  officer,  he  shall  call  upon  the  latter  for  an  explanation 
in  writing-  of  the  complaint  nia.h'   a^ahist  him,  with  a  list  ot 
persons  t.'.  be  iiuestioiied,  and  shall  promptly  institute  an  inquiry 
into  the  circ-umstances  in  order  to  regulate  his  further  proceed- 
inos      If  after  such  inquiry,  he  shall  not  deem  a  report  to  the 
Drpartm.'ut   reciuisite,    the  officer  shall,    within   ten  days,   be 
restored  to  duty ;  but  when  it  is  a  complaint  of  oppression  made 
bv  an  inferior  against  a  superior  officer,  and  the  latter  is  restored 
to  duty   the  commanding  officer  shall,  if  it  be  requested,  give  m 
writiii"-  his  reasons  for  the  restoration  to  the  officer  making  the 
complaint,  who  shall  have  the  right  of  appeal  to  higher  authority. 
If  the  complainant  shall  decide  to  appeal  the  commanding  officer 
shall  transmit  to  the  Secretary  of  the  Treasury  a  full  statement 
of  the  case,  accompanied  by  the  statements  of  the  parties  to  the 

controversy.  i      4.1    4. 

095  Oifenses  shall  not  be  allowed  to  accumulate  m  order  that 
sufficient  matter  may  thus  be  collectively  oV>tained  for  trial, 
^^dthout  giving  due  notice  to  the  offender;  and  no  officer  who 
has  been  formally  reprimanded  by  the  Department  for  an  offense 
shall  be  subsequently  tried  therefor,  nor  shall  the  same  T)e  sub- 
iect  agahi  to  in.piiry  except  when  it  may  be  necessary  to  prove 
a  particular  habit  charged,  or  tor  the  due   administration  of 

iustice.  .     , 

696  Malicious,  vexatious,  or  frivolous  charges  against  any  one 
will  subjec-t  the  accuser  to  all  the  pains  and  penalties  of  such 

conduct.  .        ,    ,1  1     ;   •    1 

697  No  person  in  the  Revenue-Cutter  Service  shall  be  tried  or 
punished  for  any  crime  or  offense  connected  with  the  service 
which  shall  appear  to  have  been  committed  more  than  two  years 
before  the  issuing  of  the  order  for  such  trial,  unless  for  some 
manifest  impediment  he  shall  not  have  been  amenable  to  justice 

A\nthin  that  period. 

698  Every  officer,  when  placed  in  arrest,  shall  deliver  up  Ins 
sword  through  the  arresting  officer  to  the  captain  of  the  vessel. 
He  shall  coniine  himself  to  the  limits  assigned  him  under  pam 
„f  dismissal  from  the  service.  An  officer  under  arrest  shall  not 
visit  officiallv  his  commanding  officer,  unless  sent  for;  and  m 
case  of  business  requiring  attention,  he  shall  make  it  known  in 
wi-iting. 


142 

699.  No  officer  placed  iinder  siispension  or  arrest  shall  be  con- 
fined to  his  room  or  restrained  from  the  proper  use  of  any  part 
of  the  vessel  except  the  quarter-deck,  bridge,  and  pilot  house, 
unless  such  confinement  or  restraint  shall  be  necessary  for  the 
safety  of  the  vessel  or  the  preservation  of  good  order  and  dis- 

-  cipline. 

700.  No  officer  who  may  have  been  placed  in  arrest  has  any 
right  to  insist  upon  being  tried  by  a  board,  or  to  persist  in  con- 
sidering himself  under  the  restraint  of  such  arrest  after  he  shall 
have  been  released,  or  to  refuse  to  return  to  the  exercise  of  his 
duty. 

701.  Commanding  officers  shall  not  impose  upon  persons  under 
their  command  any  other  punishments  than  the  following : 

(1)  Upon  commissioned  officers — 

Private  reprimand ;  suspension  from  duty ;  arrest  or  con- 
finement for  a  period  not  longer  than  ten  days,  except 
as  provided  in  paragraph  691. 

(2)  Upon  enlisted  men  (for  a  single  offense  or  at  any  one  time) , 

either — 
Reduction  of  any  rating  established  by  himself ;  confine- 
ment, with  or  without  irons,  single  or  double,  not  ex- 
ceeding ten  days ;  confinement  on  bread  and  water  not 
exceeding  five  days ;  deprivation  of  liberty  on  shore ; 
extra  duties. 

702.  All  punishments  inflicted  by  a  commanding  officer,  or  by 
his  order,  except  reprimands,  shall  be  fully  entered  in  the  log. 
This  entry  must  include  the  rank  or  rating  of  the  offender,  the 
date  and  nature  of  the  offense,  and  the  kind  and  degree  of  pun- 
ishment.    The  termination  of  the  punishment  shall  be  noted  also. 

703.  The  commanding  officer  shall  use  every  endeavor  to  assure 
himself  that  subordinates  exercise  no  cruelty  toward  persons  in 
confinement,  and  that  the  latter  suffer  no  unusual  treatment 
without  his  knowledge  and  authority. 

704.  All  reports  of  miscondiict  shall  be  investigated  by  the  com- 
manding officer  before  punishment  is  adjudged.  After  inquiring 
into  the  facts  in  each  case  and  according  both  accuser  and  accused 
an  impartial  hearing,  he  shall  assign  a  punishment  when  neces- 
sary. He  shall  direct  the  release  of  every  person  confined  upon 
the  expiration  of  the  term  of  confinement. 


143 

TO,").  An  officer  having  occasion  to  report  an  enlisted  man  for 
any  cause  whatever  shall  make  the  report  to  the  executive  officer. 

TOO.  All  punishments  consisting  of  extra  diities  shall  be  discon- 
tinued on  Sunday. 

707.  Care  shall  be  taken  not  to  confine  intoxicated  men  in  siTch 
a  place  or  manner  as  may  be  dangerous  in  their  condition. 

708.  No  c-ommissioned  officer  shall  take  part  personally  in  the 
arrest  of  a  drunken  man  further  than  may  be  absolutely  neces- 
sary, but  the  an-est  shall  always  be  made  by  a  petty  officer  or 

seaman. 

701).  The  commanding  officer  may  restrict  or  confine  a  commis- 
sioned officer  to  the  limits  of  the  vessel  for  an  offense  which,  in 
the  former's  judgment,  merits  such  punishment ;  but  such  restric- 
tion or  confinement  shall  not  continue  longer  than  ten  days. 

710.  Whenever  any  person  in  the  Revenue-Cutter  Service  who 
shall  have  been  placed  under  suspension,  arrest,  or  confinement, 
or  otherwise  punished  for  misconduct,  shall  be  released  and  en- 
tirely discharged  by  competent  authority,  such  discharge  shall 
be  a  "bar  to  further  "disciplinary  proceedings  in  the  case  as  far  as 
the  interests  of  the  Service  are  concerned. 

Redress  of  Wrongs. 

711.  If  any  person  in  the  Revenue-Cutter  Service  sliall  con- 
sider himself  oppressed  by  his  superior,  or  observe  in  him  any 
misconduct,  he  shall  not  on  that  account  fail  in  his  respectful 
bearing  toward  him,  but  shall  represent  such  oppression  or  mis- 
conduct, through  the  official  channels,  to  proper  authority.  He 
will  be  held  accountable,  however,  if  his  representations  be  found 
vexatious,  frivolous,  or  false. 

713.  An  application  for  a  redress  of  ^^Tong  shall  be  made  in 

■\vi-iting. 

713  When  an  application  for  redress  of  wrong  is  made  to  the 
commanding  officer  and  he  shall  consider  that  the  alleged  uTong 
is  of  sufficient  gravity  to  warrant  the  action  of  higher  authority, 
he  shall  submit  a  report  of  the  case,  together  ^\^th  all  the  cor- 
respondence relating  thereto,  to  the  Secretary  of  the  Treasury. 

714.  No  officer  has  the  right  to  demand  a  board  of  investiga- 
tion on  himself  or  others,  the  granting  of  a  trial  resting  solely  in 
the  discretion  of  the  officer  authorized  to  convene  a  board. 


APF'JENDIX  E. 


EXPLANATION    OF    GENERAL    SCOTT    WITH    REFER- 
ENCE   TO   THE   ARMY   REGULATIONS    OF    182L 

Washington,  May  2,  1822. 

Major  General  Scott  has  the  honor  to  submit  to  the  committee 
of  the  House  of  Representatives,  to  which  was  referred  a  resohi- 
tion  relative  to  the  regulations  of  the  Army,  the  following  •  con- 
densed statement  of  facts,"  and  shall  be  happy  to  furnish  any 
further  explanation  in  his  power  that  may  be  required  by  the 
committee. 

General  Scott  compiled  all  the  articles  of  the  book  originally 
submitted  to  Congress,  and  many  of  the  others,  and  was  the 
editor  of  the  whole. 

He  brought  the  manuscript  of  that  part  of  the  book  submitted 
to  Congress  with  him  to  Washington,  in  December,  1820,  and 
intended  to  request  leave  to  superintend  the  printing  of  it  for 
the  use  of  Congress ;  but  his  duties  called  him  away  from  Wash- 
ington on  the  2.Sth  or  '29th  of  the  same  month.  As  soon  as  the 
book  was  out  of  the  press  of  the  Public  Printer,  General  Scott 
received,  at  Philadelphia,  some  four  or  five  coijies  sent  to  him  by 
request,  and  from  several  persons.  He  immediately  perceived 
that  the  impression  contained  many  typographical  errors;  and, 
on  a  more  attentive  examination  (which  the  printed  form  enabled 
him  to  make),  he  discovered  that  some  parts  of  the  book  did  not 
perfectly  harmonize  with  each  other,  and  that  pi'inciples  laid 
do^^^l  in  other  articles  required  a  fuller  development.  Fearful 
that  the  book  would  be  immediately  acted  on  by  Congress,  he 
hastily  sent  to  the  chairman  of  the  Military  Committee  of  the 
House,  direct,  a  copy  containing  such  corrections  as  first  occurred 
to  him,  and  proceeded  somewhat  more  at  his  leisure  to  render 
the  book  as  perfect  as  it  was  in  his  power  to  make  it.  General 
Scott  has  now  ascertained  that  it  was  on  the  30th  February,  1821, 


14G 

that  he  sent  a  copy,  with  all  his  corrections,  through  the  War 
Department,  to  the  same  committee.  lliis  copy  was  the  exact 
dnplicate  of  another  retained  by  him,  both  corrected  in  red 
ink,  and  verified  in  the  most  particular  manner.  About  tlie  3d 
March  he  received  a  letter  from  Gen.  A.  Smyth,  chairman,  etc., 
advising  him,  General  Scott,  that  the  corrected  copy  had  been 
received,  and  that  the  fourteenth  section  of  the  act  of  2d  March, 
1821,  had  been  added  to  a  bill  from  the  Senate,  by  way  of  amend- 
ment, etc.  Early  in  the  same  month,  General  Scott  received 
instructions  to  put  the  book  to  the  press  for  the  use  of  the  Army. 
All  the  proof  sheets  of  the  new  impression  passed  under  the  in- 
spection of  General  Scott,  and  he  solemnly  avers  that  all  the 
articles  which  had  been  before  Congress  for  sanction  were  strictly 
reprinted  from  the  corrected  duplicate  copy  retained  by  General 
Scott,  as  above  stated,  and  that  the  article  75  was  one  of  those 
which  had  been  previously  so  corrected.  He  is  confirmed  in  his 
strong  recollection  on  this  .subject  by  the  positive  conviction 
that  he  received  no  suggestion  from  anybody  to  alter  article  75, 
but  was  himself  induced  to  insert  the  words  "except  in  extraor- 
dinary cases, "  at  the  time  the  other  corrections  were  made,  in 
order  that  the  rule  might  correspond  with  the  analogous  but 
stronger  case  contained  in  article  4,  i)aragraph  1,  where  the  same 
words  will  be  found.  The  latter  rule  has  existed  in  our  service 
since  the  year  181o,  at  least. 

General  Scott  has  said,  above,  that  the  articles  which  were 
first  printed  for  the  use  of  Congress  Avere  strictly  reprinted,  after 
the  duplicate  copy  retained  by  him.  He  ought  to  have  said  that 
they  were  reprinted  in  the  most  perfect  good  faith,  as  he  recol- 
lects to  have  made,  perhaps,  two  or  three  verbal  corrections, 
after  the  20th  February,  1821,  merely  with  a  view  to  grammat- 
ical propriety;  and  he  also  recollects  that  article  38  ("organiza- 
tion of  departments")  was  slightly  altered  at  the  time  it  was 
reprinted;  as  tluis:  the  words  "major  general  of  the  division" 
were  stricken  out,  and  so  was  "  assisf<(nt."  before  the  words 
"inspector  general."  These  changes  it  was  thought  were  ren- 
dered necessary  by  the  act  that  sanctioned  the  regulations,  and 
which  gave  to  the  Army  a  new  organization  in  those  particulars. 

Tlie  foregoing  statement  is  made  on  the  strength  of  a  memory 
that  has  but  rarely  deceived.     General  Scott  has  not  had  in  his 


147 

hands  (ill  all,  Jive  minutes,)  a  copy  of  the  regulations  as  printed 
for  the  use  of  Congress,  in  the  last  ten  months. 
All  of  which  is  most  respectfully  submitted. 

WiNFiELD  Scott, 
Major  General  hi/ brevet. 

P.  S.— General  Scott  begs  leave  to  add,  that,  to  the  best  of  his 
knowledge  and  belief,  not  a  principle  embraced  by  the  work  orig- 
inally laid  before  Congress  has  been  changed  or  impaired  by  the 
alterations  and  amendments  above  noticed. 

WlNFIELD  ScOTT. 


APPENDIX   F. 


LETTER  OF  SECRETARY  OF  WAR  BELKNAP,  ACCOM- 
PANYING PROPOSED  REGULATIONS  OF  1873. 

War  Department, 
Washington  City,  Febtmary  17,  1873. 
To  the  House  of  Representatives  of  the  United  States: 

The  Secretary  of  War  has  the  honor  to  transmit,  for  the  con- 
sideration of  tile  House  of  Representatives,  a  system  of  regula- 
tions for  the  administration  of  the  aflE airs  of  the  Army,  prepared 
in  accordance  with  the  provisions  of  section  20  of  the  act  ap- 
proved July  !.■),  18T0.  Soon  after  the  passage  of  that  act  a  board 
of  officers  was  assembled,  who,  after  much  labor  and  inquiry 
into  the  practical  needs  of  the  service,  finally  prepared  these  reg- 
ulations, which,  with  some  modifications,  are  submitted.  From 
the  detailed  nature  of  the  work  it  was  found  impossible  to  pre- 
pare it  in  time  to  be  presented  at  the  third  session  of  the  Forty- 
first  Congress,  as  required  by  the  act. 

It  is  proper,  in  submitting  them,  to  observe  that  they  are 
merely  regulations  in  aid  or  complement  to  the  statutes,  and 
define  and  prescribe  the  details  for  carrying  on  the  routine  work 
of  the  Army.  The  act  of  July  28.  1866,  section  37,  chapter  299, 
declares  that  the  existing  regulations  shall  remain  in  force  until 
Congi-ess  shall  have  acted  iipou  a  code  of  regulations  to  be  pre- 
pared by  the  Secretary  of  War. 

The  regulations  then  and  now  in  force  are  those  of  1863.  They 
are  ten  years  old,  and  no  longer  adapted  to  the  condition  of 
Army  affairs,  but  under  the  act  of  1866  it  is  impossible  for  the 
Executive  to  change  them.  The  length  of  a  letter  on  a  knap- 
sack, for  example,  being  prescribed  therein,  the  Executive  has 
no  power  to  alter  its  size  until  Congress  shall  authorize  it,  and 
the  regulations  now  pre.sented  \\'ill  be  subject  to  precisely  the 
same  objection,  and  if  they  are  to  be  made  law,  not  to  be  altered 
or  amended  save  by  act  of  Congress,  there  are  many  provisions 

(149) 


150 

that  it  wmild  be  wise  not  to  present,  as  experience  may  show 
that  alterations  may  be  necessary.  The  Secretary  of  War  there- 
fore earnestly  recommends  to  Congress  that,  if  formally  ap- 
proved by  that  body,  they  be  made  subject  to  such  alterations 
as  the  President  may  from  time  to  time  adopt. 

Wm.  W.  Belknap, 

Secretary  of  War. 


APPENDIX    G^. 


REPORT   OF   COMMITTEE   ON   MILITARY  AFFAIRS, 
HOUSE   OF   REPRESENTATIVES, 


IN  i;f.i;m;i>  to  thk 


Promulgation  of  "Revised.  Army  Regulations  "  (H.  R.  bill  844), 
with  vie\v?5  of  officers,  as  published  in  House  Report  No.  S92, 
43d  Congress,    1st  Session. 


In  the' twentieth  section  of  the  act  approved  July  l.j,  1870, 
entitled  '  ■  An  act  making  appropriations  for  the  support  of  the 
Army  for  the  year  ending  June  80,  18T1,  and  for  other  purposes, " 
it  was  i)rovided  as  follows : 

"That  the  Secretary  of  War  .shall  prepare  a  system  of  general 
regulations  for  the  administration  of  the  affairs  of  the  Army, 
which,  when  approved  by  Congress,  shall  be  in  force  and  obeyed 
until  altered  or  revoked  by  the  same  axithority :  and  the  said 
regulations  shall  be  reported  to  Congress  at  its  next  session: 
Provided,  That  said  regulations  shall  not  be  inconsistent  with 
the  laws  of  the  United  States." 

In  accordance  A^th  the  provisions  of  the  law  the  Secretary  of 
War  caused  'Revised  Army  Regulations  "  to  be  prei)ared  by  a 
board  of  officers,  and  on  the  ITtliof  February,  1873,  the  Secretary 
of  War  submitted  a  copy  of  said  "Revised  Army  Regulations  ' 
to  the  House  of  Representatives,  accompanied  with  a  note,  in 
which  he  said : 

"Soon  after  the  passage  of  that  act  (July  15,  1870),  a  board  of 
officers  was  assembled,  who.  after  much  labor  and  inquiry  into 
tlie  practical  needs  of  the  service,  finally  prepared  these  regula- 
tions, which,  with  some  modifications,  are  submitted.  From  the 
detailed  nature  of  the  work  it  was  found  impossible  to  prepare 
it  in  time  to  be  presented  at  the  third  session  of  the  Forty-first 
Congress,  as  re(iuiivd  by  the  act." 

(151) 


152 

This  report  came  to  the  Military  Committee  of  the  Forty-second 
Congress  at  such  a  late  day  of  the  session  that  it  was  impossible 
for  the  committee  or  the  Forty-second  Congress  to  act  upon  it. 

The  Committee  on  Military  Affairs  on  the  6th  of  March,  1873, 
made  the  following  report : 

' '  That  they  were  referred  to  them  within  a  few  days  past ; 
that  they  are  voluminous,  and  that  there  is  not  sufficient  time  to 
consider  the  same,  and  therefore  ask  that  the  same  be  printed. " 

Ever  since  the  assembling  of  the  Forty-third  Congress  the 
"Revised  Army  Regulations'"  have  been  under  consideration, 
and  the  Committee  on  Military  Affairs  sensibly  feel  the  gravity 
and  importance  of  the  work  comprehended  in  these  regulations, 
but  are  far  from  satisfied  that  they  are  just  the  thing  in  all 
respects  required  for  the  government  of  the  Army,  and  therefore 
hesitate  to  recommend  their  adoption  by  Congress,  and  thereby 
give  them  the  force  and  effect  of  law  for  the  control  of  the  Army 
and  the  management  of  the  military  affairs  of  the  country. 
Doubtless  many  of  the  provisions  are  excellent  and  would  be 
very  desirable,  while  others  are  open  to  objection  and  which  in 
practice  woiild  not  conduce  to  the  harmonious  government  of 
the  Army.  The  committee  feel  that  it  would  not  answer  the  best 
purposes  of  the  Army  to  incorporate  the  proposed  "Revised 
Army  Regulations  "  into  the  military  system  of  the  country  by 
legal  enactment. 

The  committee  feel  fortified  and  confirmed  in  this  conclusion 
from  the  opinions  which  they  have  elicited  from  a  number  of 
able  and  experienced  Army  officers,  to  whom  the  proposed  regu- 
lations were  submitted.  These  officers  question  the  propriety  of 
Congress  adopting  these  regulations,  and  are  of  opinion  that 
they  would  not  work  to  the  advantage  of  the  Army.  The  com- 
mittee append  to  this  report  the  statements  of  these  officers  upon 
the  subject. 

Army  regulations  should  be  flexible,  so  as  to  allow  of  their 
change  or  modification  as  circumstances  and  the  exigencies  of 
the  public  service  may  require ;  they  ought  not,  in  the  opinion 
of  the  committee,  to  be  absolute,  and  which  could  only  be  an- 
niilled  or  changed  by  act  of  Congress. 

The  Articles  of  "War  should  be  the  fixed  law  for  the  govern- 
ment of  the  AiTny,  and  the  regulations  ought  to  gi'ow  out  of 


15B 

these  as  tlie  limbs  do  out  of  a  tree ;  the  limbs  may  be  cut  off  or 
trimmed,  but  the  tree  remains.  Articles  of  War  and  regulations 
ought  to  sustain  the  same  relationship  to  each  other.  There 
ought  to  be  power  lodged  somewhere  outside  of  Congress  to 
make  and  change  regulations  when  there  is  occasion  for  so 
doing.     The  committee  therefore  report  the  following  bill : 

"Be  it  enacted,  etc.,  That  so  much  of  section  20  of  the  act 
approved  July  b"),  1870,  entitled  'An  act  making  appropriations 
for  the  support  of  the  Anny  for  the  year  ending  June  80,  18T1, 
and  for  other  purposes, '  as  requires  the  system  of  general  regu- 
lations for  the  Army  therein  authorized  to  be  reported  to  Con- 
gress at  its  next  session,  and  approved  by  that  body,  be.  and  the 
same  is  hereby,  repealed ;  and  the  President  is  hereby  authorized, 
under  said  section,  to  make  and  publish  regulations  for  the  gov- 
ernment of  the  Army  in  accordance  with  existing  laws. '" 


Views  on  proposed  neic  Army  Regidations,  by  Maj.  Gen.  W.  S. 
Hancock,  Gen.  K  A.  Miles,  Gen.  John  Pope,  Gen.  E.  D.  Town- 
send,  Gen.  R.  B.  Marcy,  Gen.  N.  H.  Davis,  Gen.  R.  S.  Roberts, 
Gen.  J.  J.  Reynolds,  and  Capt.  Kinzie  Bates. 

New  York  City,  January  22,  1874. 
General:  In  compliance  with  your  recent  suggestion,  I  have 
made  a  general  examination  of  the  proposed  new  regulations  for 
the  Army,  and  having  observed  some  features  which  particularly 
struck  me  as  objectionable,  I  give  herewith  my  views  thereon 
as  follows : 

The  Constitution  of  the  United  States  says:  "Congress  shall 
have  power  to  make  rules  for  the  government  and  regulation  of 
the  land  and  naval  forces." 

The  acts  of  Congress  on  this  siibject  read  as  follows: 
Act  of  March  3,  1813:  •'  It  shall  be  the  duty  of  the  Secretary 
of  the  "War  Department,  and  he  is  hereby  authorized,  to  prepare 
general  regulations,"  etc.,  "which  regulations,  when  approved 
by  the  President  of  the  United  States,  shall  be  respected  and 
obeyed  until  altered  or  revoked  by  the  same  authority.  And  the 
said  general  regulations,  thus  prepared  and  approved,  shall  be 
laid  before  Congress  at  their  next  session." 

The  act  of  April  24,  1816:  "  The  regulations  in  force  before  the 
reduction  of  the  Army  be  recognized  as  far  as  the  same  shall  be 


154 

found  applicable  to  the  service,  subject,  however,  to  such  altera- 
tions as  the  Secretary  of  War  may  adopt  vdth  the  approbation 
of  the  President." 

The  act  of  July  28,  1866:  "The  Secretary  of  War  be,  and  he  is 
hereby,  directed  to  have  prepared,  and  to  report  to  Congress  at 
its  next  session,  a  code  of  regulations  for  the  government  of  the 
Army,  and  of  the  militia  in  actual  service,  which  shall  embrace 
all  necessary  orders  and  forms  of  a  general  character,  for  the 
performance  of  all  duties  incumbent  on  officers  and  men  in  the 
military  service,  including  rules  for  the  government  of  courts- 
martial.  The  existing  regulations  to  remain  in  force  until  Con- 
gress shall  have  acted  on  said  report." 

The  act  of  Jiily  15,  1870:  "The  Secretary  of  War  shall  prepare 
a  system  of  general  regulations  for  the  administration  of  the 
affairs  of  the  Army,  which  when  approved  by  Congress,  shall  be 
in  force  and  obeyed  until  altered  or  revoked  by  the  same  aiithority. 
and  said  regulations  shall  be  reported  to  Congress  at  its  next  ses- 
sion :  Provide fl  That  tlie  said  regulations  shall  not  be  inconsist- 
ent with  the  laws  of  the  United  States." 

Unless  the  Articles  of  War  be  so  considered,  Congress  does  not 
appear  even  to  have  exercised  directly  its  constitutional  power 
to  ' '  make  rules  for  the  government  of  the  land  and  naval  forces ;  " 
but,  on  the  contrary,  has  placed  the  labor  of  preparation  on  the 
President  and  Secretary  of  War,  and  reserved  to  itself  only  the 
duty  of  approving  the  rules  made  by  these  officers. 

The  Supreme  Court  of  the  United  States  has  decided  that  "the 
power  of  the  Executive  to  establish  rules  and  regulations  for  the 
government  of  the  Army  is  undoubted.  The  power  to  establish 
implies  necessarily  the  power  to  modify,  or  repeal,  or  to  create 
anew."  And  the  Attorney-General  has  given  the  opinion  that 
"the  War  Department,  representing  the  President  in  the  admin- 
istration of  the  Army,  has  permanent  authority  from  Congress 
to  make  regulations  in  aid  and  complement  of  statutes." 

The  regulations  now  before  Congress  for  its  approval  are  those 
submitted  in  compliance  with  the  act  of  July  15,  1870,  which 
says  that  when  they  are  approved  by  Congress  they  shall  be  in 
force  and  obeyed  until  altered  or  revoked  by  the  same  authority. 
The  power  which  the  Supreme  Court  and  Attorney-General  find 
the  Executive  to  possess  for  establishing  regulations  and  modi- 
fying, repealing,  and  creating  them  anew,  will  not,  therefore. 


155 

apply  to  tlu>  proposed  code  if  adopted  under  this  statute.  In  fact 
it  can  not  be  supposed  that  it  applies  to  any  code  adopted  by 
Congress  without  a  special  provision  of  Congress  ctnif  erring  upon 
the  Exec-utive,  instead  of  reserving  to  itself,  the  power  m  .lues- 
tion  On  the  contrary,  it  must  apply  only  to  those  ' '  regulations 
in  aid  and  complement  of  statutes  "  to  which  the  Attorney-Gen- 
eral refers. 

The  article  of  the  Constitution  which  gives  Congress  power  to 
make  rules  for  the  Arniv  would  scarcely  be  regarded  if  that  duty 
were  delegated  absolutely  and  entirely  to  some  one  else;  and 
Cono-ress  would  have  t.i  repeal  the  act  of  Jxily,  IHTD.  and  would 
place  itself  in  a  peculiar  attitude  if  it  should  confer  on  the 
President  power  to  change  immediately  and  entirely  a  code  of 
regulations  which  had  .iust  received  Congressional  sanction  as 

right  and  wise. 

The  foregoing  leads  to  the  conclusion  that  to  conform  exactly 
to  the  Constitution  the  "general  regulations"  called  for  by  the 
act  of  July,  1870,  should  be  adopted  by  Congress  as  the  Articles 
of  War  now  in  force  were,  and  that  as  prescribed  in  said  act 
they  should  not  be  altered  or  revoked,  except  by  authority  of 

Congress.  .      ■,      -,   j. 

Furthermore,  consideration  for  the  good  of  the  service  leads  to 
the  same  conclusion.  There  are  certain  general  rules  concern- 
i„o-  organization,  rank,  command,  appointments,  promotions, 
rewards  punishments,  discipline  (including  military  courts), 
compliments,  responsibility  for  public  money  and  property,  etc., 
which  should  be  established  by  Congress,  known  to  the  service 
as  so  established,  and  changeable  only  by  Congress.  This,  it 
seems  to  me.  is  necessarv  to  put  into  the  military  service  an 
element  of  certainty  and  stability  required  for  its  good  manage- 

'  But  in  addition  to  these  rules,  in  aid  and  complement  of  them, 
issued  and  administered  with  them,  should  come  that  large  mass 
of  regulations,  in  detail,  which  the  Supreme  Court  finds  the 
President  has  undoulited  right  to  make  and  modify  at  his 
pleasure,  and  which  we  all  know  it  is  necessary-  he  should  so 

make  and  modify.  . 

The  code  now  before  Congress,  excellent  in  many  respects,  is 
objectionable  on  account  of  eml)racing  altogether  too  much  for 
congressional  approval  or  sanction.     There  are  some  things  m 


156 

military  affairs  which  are  above,  and  others  which  are  beneath, 
congressional  action.  This  code  contains  both.  As  an  example 
of  the  former  it  is  enough  to  state  that  it  prescribes  the  manner 
of  conducting  marches,  sieges,  defenses,  of  fighting  battles,  etc. 
That  is  to  say,  it  establishes  rnles  to  which  the  science  of  war 
must  conform.  It  would  be  as  well  to  enact  rules  to  govern  the 
science  of  astronomy. 

The  parts  of  the  proposed  code  here  referred  to  fail  to  exhiliit 
that  consistency  with  the  laws  of  the  United  States  which  is 
required  by  the  act  of  July,  1870,  in  response  to  which  the  code 
is  submitted.  They  are  in  fact  essays  setting  forth  the  views  of 
the  writers  upon  various  unsettled  military  subjects,  to  which  it 
is  manifestly  imnecessary  that  congressional  sanction  should  be 
given.  The  effect  produced  by  congressional  indorsement  of 
these  views  may  be  somewhat  mitigated  by  delegating  to  the 
President  authority  to  undo  the  action  of  Congress,  biit  it  is  cer- 
tainly far  better  not  to  so  involve  the  subject. 

Those  things  which  are  lieneath  congressional  action  form  a 
large  part  of  the  code,  appearing  in  the  details  laid  dowai  for  the 
interior  management  of  bureaus,  arms  of  service,  regiments, 
companies,  etc.  ;  such,  for  example,  as  the  following,  taken  at 
random,  in  which  Congress  is  asked  to  enact  that  ' '  whenever  a 
patient  is  transferred  from  the  care  of  one  medical  officer  to 
another,  the  account  of  his  case,  taken  from  the  record,  shall 
accompany  him;'"  that  "paymasters  while  making  payments  to 
troops  shall  be  in  uniform; '"  that  "immediately  after  a.man  has 
enlisted  the  recruiting  officer  will  have  his  hair  cut  close,"  that 
' '  during  warm  weather  the  ice  shall  be  distributed  under  the 
direction  of  the  post  commander;"  that  "the  noncommissioned 
officer  in  charge  of  the  mess-room  will  see  that  no  soldier  goes  to 
the  mess-table  unless  perfectly  clean  and  in  uniform ; "  that  ' '  cap- 
tains will  require  their  lieutenants  to  assist  them  in  the  perform- 
ance of  all  company  diities;"  that  "on  the  plains,  when  forage 
can  not  be  obtained,  grazing  shoxild  be  allowed  at  every  sjiare 
moment,  and  as  long  as  possible,  especially  early  in  the  morning 
when  the  dew  is  on  the  grass;"  that,  "when  practicable,  bran- 
mash  is  to  be  given  once  a  week ;  never  oftener  than  twice  a 
week,  except  to  purge;"  that  "a  horse's  feet  should  be  stripped 
with  clav  or  cow  manure  at  least  once  a  week;"  and  that  "the 


157 

sheath  must  be  washed  once  a  week  with  castile  soap,  and  then 
greased." 

The  wisdom  of  these  rnles  is  not  under  dis(;ussion.     The  point 
made  is  that  tliey  do  not  retpxire  the  action  of  Conj^resss  and  had 
better  be  left  with  the  Executive.     Furthermore,  the  code,  beside 
being  defective  in  giving  detailed  regulations  to  Congress,  under 
a  resolution  which  called  for  general  regulations  for  the  govern- 
ment of  our  service,  fails  to  be  fully  responsive  to  the  resolution 
in  being  to  a  large  extent  inapplicable  to  our  Army.     This  is  a 
grave  defect.     One  serious  ditficulty  encountered  by  those  who 
administer,  as  well  as  those  who  obey,  our  Army  regulations  is 
the  great  number  and  bulk  of  them.     It  is,  therefore,  a  primary 
consideration  that  they  shall  contain  nothing  but  what  is  neces- 
sary.    They  are  made  "for  the  administration  of  the  affairs  of 
the  Army,"  and  every  one  of  them  should  be  applicable  to  the 
affairs  of  our  Army  as  we  are  now  conducting  them,  or  to  its 
affairs  as  we  are  likely  to  conduct  them  in  case  of  hostilities. 
This  will  not  admit  of  our  enlarging  the  regulations  and  bewil- 
dering those  concerned  with  them  by  embodying  in  the  code  a 
great  mass  of  rules  and  theories  which  have  no  application  what- 
ever to  any  part  of  our  military  organization  as  established  by 
existing  laws;  much  less  will  it  admit  of  the  introduction  of 
rules  for  organizations  that  we  have  never  had,  or  that  we  have 
tried  and  abandoned.     There  are  many  rules  in  the  proposed  code 
coming  under  these  heads ;  some  of  them  read  as  if  they  had  been 
translated  vpyhafim  from  foreign  services.     That  part  of  article 
4  headed  ' '  staff, "  hereafter  (luoted,  is  a  sjimple  of  this.     Another 
may  be  found  on  page  3,  reading  thus:  "The  regiment  is  not,  as 
such,  a  tactical  unit.     It  is  an  organization  composed  of    *    *    * 
from  eight  to  sixteen  batteries,  including  those  at  the  depot." 
We  have  no  regiment  of  artillery  <jf  either  eight  or  sixteen  bat- 
teries (our  regiments  containing  just  twelve).     We  have  no 
depots  for  part  of  the  batteries  of  a  regiment,  and  never  had. 
The  nearest  approach  to  this  form  of  organization  we  ever  made 
was  in  IH61,  when  we  created  some  new  regiments  of  infantry, 
composed  each  of  three  battalions,  and  for  a  time  indulged  in  the 
theory  that  one  of  them  would  be  a  depot  liattalion ;  but  we  were 
disappointed  in  the  practical  working  of  this  organization,  and 
subseciuently  abolished  it  by  law.     Tlien  why  now  encumber  the 
regulations  made  for  our  daily  guidance  with  a  likeness  of  it 


158 

assumed  for  the  artillery.     Many  other  examples  could  be  given. 

But  besides  the  foregoing  objections  to  tlie  general  plan  of  the 
code,  there  are  objections  to  certain  important  particulars  in  it. 
It  is  only  practicable  here  to  refer  to  some  of  them. 

On  page  10  there  is  a  regulation  saying  that  "in  each  grade 
officers  will  take  precedence  by  date  of  commission  or  appoint- 
ment, excepting  that  whenever  military  operations  may  recpiire 
the  presence  of  two  or  more  officers  of  the  same  grade  in  the 
same  field  or  department,  the  President  may  assign  the  command 
of  the  forces  to  any  officer  of  the  highest  grade  present,  without 
reference  to  date  of  commission. " 

The  authority  given  to  the  President  by  the  last  part  of  this 
regulation,  to  make  an  exceptional  assignment,  is  directly  incon- 
sistent A\'itli  existing  laws.  The  power  to  make  such  exceptional 
assignment  was  conferred  on  the  President  by  special  act  of  Con- 
gress during  the  late  war,  but  it  was  repealed  by  the  act  of  July, 
1866. 

On  page  11  it  is  stated,  "commands  are  exercised  l>y  virtue  of 
office  or  by  special  assignment  of  officers  having  military  rank, 
and  who  are  eligible  by  law  to  such  commands. " 

The  meaning  of  this  paragraph  is  not  plain.  The  princiiile  it 
should  enunciate  is  that  office  and  rank  in  the  Army  are  con- 
ferred by  the  President  and  Senate,  that  they  render  the  officer 
eligible  to  command,  but  that  he  exercises  command  by  virtue 
of  assignment  and  not  ' "  by  virtue  of  office. " 

Page  104.  Article  LV.  is  headed  ' "  Staff. "  "  The  staff  is  divided 
into — 

"  1st.  The  general  staff,  composed  of  the  generals  of  the  Army 
who  command  troops,  and  the  officers  who  aid  them  in  the  direc- 
tion of  military  operations. 

"2d.  The  administration  services." 

If  this  paragraph  is  not  inconsistent  with  any  existing  statute, 
it  /*•  inconsistent  with  our  military  history,  the  character  of  our 
military  establishment,  and  with  a  long  established  custom  of 
our  service ;  (this  custom,  if  not  statute  law,  is  generally  good 
law).  It  is  inconsistent  \\ntli  the  definition  on  page  3,  where  the 
theory  of  the  military  establishment  is  given.  There  we  are  told 
that  ' '  the  staff  inchides  all  officers  who  aid  general  officers  in  the 
performance  of  their  duties,  and  those  who  provide  the  needful 


159 

supplies  ami  minister  to  the  various  wants  of  the  Army.     It  c(jn 
sists  of  a  general  staff  and  of  special  staffs,  or  administrative 
services. 

"The  general  staff  includes  the  chief  of  staff,  the  officers  of 
the  Adjutant-General's  and  Inspector-General's  Departments, 
and  all  officers  acting  in  these  capacities,"  etc. 

The  effect  of  the  paragraph  imder  discussion  is,  by  an  obscure 
definition,  to  lay  the  foundation  for  changing  the  status  of  the 
general  officers  of  the  Army.  Under  our  theory  and  late  prac- 
tice, they  have  been  simply  general  officers — that  is,  officers  eli- 
gible to  the  command  of  all  arms  and  branches  of  the  .service 
and  exercising  that  command  by  virtue  of  assignment  under  the 
rank  held  by  them  from  the  Government,  and  not  by  virtue  of 
being  the  staff  officers  of  some  higher  functionary  by  whose  dele- 
gated authority  they  act.  To  call  them  staff  officers  is  an  unwise 
imitation  of  certain  foreign  systems — the  French,  notably — in 
which  all  general  officers  are  regarded  as  on  the  staff  of  the  sov- 
ereign, from  whom,  in  point  of  fact,  they  derive  their  authority. 

These  remarks  apply  to  the  General,  Lieutenant  General, 
major  generals,  and  brigadier  generals  in  our  service  who  were 
appointed  to  those  offices  for  the  puiiiose  of  acting  as  command- 
ers, and  not  to  brigadier  generals  at  the  head  of  certain  staff, 
corps,  and  departments,  who  were  appointed  thereto  as  staff  offi- 
cers and  for  staff  duties. 

The  manner  of  appointment  in  these  two  classes  is  of  itself 
evidence  that  the  members  of  the  latter  class  do,  and  those  of 
the  former  do  not  belong  to  the  staff. 

Again,  withoiit  discussing  the  technical  meaning  of  the  word 
"staff,"  it  is  safe  to  say  that  with  iis  a  staff  officer  does  not,  as 
such,  command,  but  that  he  is  necessarily  an  officer  whose  duty 
it  is,  directly  or  indirectly,  to  aid  some  commander  in  carrying 
out  his,  the  commander's,  views.  In  this  light  the  general  offi- 
cers of  our  Ai'my  do  not  belong  in  the  paragraph  of  the  jiroposed 
code  quoted  above,  and  headed  " "Staff." 

On  page  1,  under  the  head  of  "Theory  of  the  military  estab- 
lishment," we  are  told  that  "the  Army  is  composed  of  the  troops 
and  the  staff."  This,  in  a  foreign  language,  may  be  a  correct 
definition  for  some  foreign  army,  Init  in  English  it  does  not  con- 
vey a  coiTect  idea;  certainly  not  to  \is,  in  relation  to  our  Army. 
The  word  '  ■  troops  "  is  immediately  afterward  defined  as  meaning 


160 

"organized  corps  or  bodies  of  combatants."  This  is  giving  an 
undue  restriction  to  the  meaning  of  "tro()ps."  It  is  a  word  in 
such  conmion  use  that  its  accepted  signification  shoukl  not  be 
changed  in  regulations ;  certainly  not  unless  to  gain  some  greater 
good  than  has  yet  appeared.  We  say  the  British  troops,  the 
rebel  troops,  the  white  troops,  the  regular  troops,  the  volunteer 
troops.  We  tell  a  commander  to  bring  up  his  troops,  march  off 
his  troops,  etc.,  never  limiting  the  meaning  of  the  word  to 
"organized  corps  or  bodies  of  combatants, "  and  excluding  the 
staff,  etc.  The  word  "line"  should  be  defined  as  used  in  x>hrase 
"details  in  the  line,"  page  4.  Is  it  equivalent  in  meaning  to 
"troops?" 

On  page  15  it  is  set  forth  that  "no  officer  .shall  be  commis- 
sioned on  the  staff  who  has  not,  for  at  least  one  year  jiist  pre- 
vious, been  on  duty  with  troops."  The  meaning  of  this  rule  is 
doubtful.  Is  it  the  intention  that  officers  now  in  the  staff  shall 
not,  when  promoted  to  a  higher  grade,  be  commis.sioned  unless 
they  have  been  "on  diity  with  troops  at  least  one  year  just  pre- 
vious," or  is  the  restriction  to  apply  only  to  officers  when  first 
appointed  to  the  staff  ?  Again,  what  is  meant  by  "on  duty  with 
troops  ? "  Is  the  commanding  general  of  an  army,  an  expedition, 
or  a  military  department  "on  duty  with  troops V"  If  so,  is  not 
his  staff"  on  duty  in  like  manner ;  or  is  the  character  of  an  officer's 
service  in  the  case  under  consideration  to  be  decided  solely  by 
considering  his  station— his  place  of  abode-  for  the  time  being  ? 

Whatever  the  correct  answers  to  these  questions  may  be,  it 
seems  clear  that  this  regulation  imposes,  to  say  the  least  of  it,  an 
unnecessary  limitation  on  the  appointing  power.  The  best  qual- 
ified and  most  deserving  shol^ld  be  selected  to  be  commissioned 
in  the  staff,  and  it  would  be  wrong  to  the  service  and  to  the 
individual  to  exclude  any  such  for  not  having  "been  on  company 
or  regimental  duty  at  least  one  year  just  previous." 

When  officers  likely  to  be  commissioned  in  the  staff  are  not 
with  their  companies,  it  is  because  they  are  properly  absent  for 
reasons  satisfactory  to  the  authority  coinijetent  to  decide  svich 
matters,  and  usually  in  the  performance  of  duties  which  es- 
pecially fit  them  for  positions  in  the  staff". 

The  object  of  the  regulation  is,  dou])tless,  to  coerce  officers 
into  remaining  with  their  companies,  and  thus  contribute  to 
obtaining,  by  a  kind  of  indirection,  an  object  which  the  Secretary 


161 

of  War  and  General  in  Chief  can  always  secure  by  direct  action, 
if  they  deem  it  desirable.  This  regulation  is  similar  in  its  gen- 
eral cliaracter  and  object  to  that  which  immediately  follows  it, 
saying  that  "colonels  of  regiments  and  captains  of  companies 
will  not  be  placed  on  any  duty  (except  general  courts-martial 
and  courts  of  inquiry)  which  shall  separate  them  from  their 
commands,  without  the  special  order  of  the  President, "  etc. 

It  is  a  fact  within  the  experience  of  all  of  us,  colonels  and  cap- 
tains are  needed  with  their  regiments  and  companies,  and  it  is 
for  this  reason  the  law  authorizes  them,  and  generally  they  are 
with  their  proper  commands;  but  it  is  nevertheless  a  fact  that 
there  are  exceptional  instances  when  these  ofl&cers  can  render 
more  valuable  service  on  detached  duty.  The  President  can  not 
look  into  these  details,  and  the  power  should  be  left  with  those 
who  actually  control  the  Army  to  i)lace  all  subordinates  where 
they  will  do  the  most  good.  Whether  that  is  Avnth  a  regiment 
or  company,  with  a  general  officer  or  a  board  to  make  regula- 
tions for  the  Army  or  the  like,  can  be  better  decided  in  each  case 
by  commanders,  as  it  comes  up  with  the  facts,  than  by  a  general 
rule  made  in  the  regulations  to  meet  the  case  before  it  arises. 
General  regulations  to  cover  exceptional  cases  usually  do  more 
harm  than  good. 

For  consistency  the  paragraph  regarding  the  absence  of  cap- 
tains should  be  made  to  agree  with  the  one  on  page  36.  There 
it  is  stated  that  captains  "are  subject  to  the  temporary  details 
of  service  as  far  as  courts-martial,  military  boards, "  etc.  ' '  Mili- 
tary boards,"  etc.,  maybe  construed  to  authorize  absence  for  a 
variety  of  purposes:  whereas,  the  paragraph  on  page  15  forbids 
the  absence  of  captains  of  companies  for  any  duty  except  ' '  gen- 
eral courts -martial  and  courts  of  inquiry." 

On  page  4  it  is  stated  "The  command  of  a  division  or  depart- 
ment will  embrace  all  the  regular  forces  stationed  within  it,  as 
well  as  such  volunteer  and  militia  as  may  be  called  into  the 
service  of  the  General  Government  to  aid  in  its  defense." 

This  general  rule  is  immediately  followed  by  a  long  list  of 
exceptions  in  these  terms:  "The  Military  Academy,  engineer 
troops,  general  depots  of  supplies,  all  arsenals,  permanent  forts 
in  process  of  construction  or  extensive  rei)airs,  general  recruiting 
depots,  and  officers  employed  on  duty  not  military,  are  excepted 

13100 II 


162 

from  the  operation  of  the  foregoing  paragraph,  at  the  discretion 
of  the  Secretary  of  War. " 

The  rule  and  the  exceptions  nearly  neutralize  each  other.  In 
fact,  the  only  rule  which  can  be  safely  announced  on  this  point 
is  the  general  one  hereinbefore  enunciated,  to  the  effect  that 
officers  command  according  to  their  assignment.  The  order 
making  an  original  assignment  should  set  forth  what  it  embraces. 
Commanders  succeeding  the  first  one  exercise  authority  to  the 
same  extent  their  predecessors  did,  unless  otherwise  ordered. 

The  sixty-second  article  of  war  provides  about  all  the  excep- 
tions that  should  be  made  to  the  foregoing  principle  of  assign- 
ment. It  says:  "If,  upon  marches,  guards,  or  in  quarters, 
different  corps  of  the  Army  should  happen  to  join  or  do  diity 
together,  the  officer  highest  in  rank  of  the  line  of  the  Army, 
Marine  Corps,  or  militia,  by  commission,  there  on  duty  or  in 
quarters,  shall  command  the  whole,  and  give  orders  for  what  is 
needful  to  the  service,  unless  otherwise  specially  directed  by  the 
President  of  the  United  States,  according  to  the  nature  of  the 
case." 

The  next  paragraph  on  this  page  (4)  defines  the  authority  of 
division  commanders  thus:  "The  commander  of  a  geographical 
division  exercises  a  supervision  over  the  affairs  of  the  depart- 
ments under  his  control  similar  to  that  which  a  general  com- 
manding an  army  in  the  field  woiild  exercise  over  his  subordi- 
nate commanders,  without  necessarily  interfering  with  the 
administration  of  the  commanders." 

This  is  too  indefinite  for  regulations.  The  division  commander 
may  be  not  sufficiently  familiar  with  the  ' '  control  which  a  gen- 
eral commanding  an  army  in  the  field  would  exercise, "  to  make 
this  regulation  any  guide  to  him.  The  last  part  of  the  regula- 
tion telling  the  division  commander  not  to  interfere  unneces- 
sarily with  the  administration  of  his  department  commanders  is 
hardly  needed,  as  he  is  quite  certain  to  think  it  necessary  before 
he  interferes. 

On  page  16  rules  governing  leaves  of  absence  to  officers  are 
given.  Post  commanders  may  grant  seven  days,  department 
commanders  thirty  days,  and  division  commanders  sixty  days 
(including  any  leave  granted  by  department  commanders ) .  Then 
it  is  stated  that  ' '  all  applications  for  a  leave  of  absence  for  a 


ir,3 

tiuie  exceeding  four  months  will  be  subuiittetr  through  th." 
proper  channels  to  the  Secretary  of  War  for  approval." 

The  code,  probably  throuKh  oversight,  does  not  give  anyone 
authoritv  to  grant  leave  for  a  period  between  sixty  days  and  four 
months,  and  does  not  give  the  General  of  the  Army  authority  to 
grant  any  leave  at  all. 

On  page  107,  imder  the  head  of  "Transfer  of  supplies,"  it  is 

stated : 

"The  Subsistence  Department  will  be  responsible  for  and  have 
control  over  the  transportation  of  its  supplies.  Purchasing  and 
depot  commissaries  will  arrange  for  all  transportation  of  their 
supplies  whenever  rail  or  water  transportation  can  be  contracted 
for  or  hired. 

"Where  supplies  are  to  be  transported  to  posts  away  from  rail 
or  water,  the  commissary  will  make  requisition  upon  the  depot 
quartermaster  at  the  place  or  point  where  such  supplies  leave 
rail  or  water,  for  the  Government  wagons,  etc.,  necessary  for 
their  transportation  to  their  destination.  If  the  (luartermaster 
can  not  furnish  such  Government  transportation,  the  commissary 
will  hire  wagons  or  contract  for  the  delivery  of  the  supplies  at 
the  place  of  destination.  At  points  of  transhipment  wdiere  there 
are  no  suitable  public  buildings,  the  commissary  will  hire  or  build 
such  storehouses  as  may  be  necessary  to  preserve  the  supplies." 

There  is  no  proof  that  defects  in  the  present  system  of  trans- 
ferring supplies  render  a  change  of  that  system  necessary,  nor 
that  the  change  proposed  would  remedy  the  defects  if  they 
existed.  The  only  argument  that  I  know  of  put  forward  in  sup- 
port of  this  change  is  that  the  officers  of  the  Subsistence  Depart- 
ment giving  general  satisfaction  in  the  pirrchase  of  provisions, 
they  would,  if  made  also  responsible  for  their  delivery,  be  more 
successful  in  providing  transportation  and  store-room  for  what 
they  purchase  than  the  officers  of  the  Quartermaster's  Depart- 
ment are.  This  conclusion  is  quite  unwarranted.  The  duty  of 
purchasing  provisions,  and  the  duty  of  getting  them  to  their 
destination,  are  entirely  different.  The  power  of  pleasing  is 
embraced  in  the  very  nature  of  the  former,  while  that  of  disap- 
pointing and  displeasing  is  almost  inseparable  from  the  latter. 
The  transaction  between  buyer  and  seller,  especially  where  the 
former  has  cash  to  pay,  is  a  very  simple  one,  resting  \\'ith  two 
individuals  and  closed  up  at  once.     Transporting  the    thing 


164 

bought  is  by  "no  means  simple;  it  involves  arrangements,  con- 
tract, etc.,  with  individuals,  railroads,  ships";  steamboats,  wagons, 
and  the  like,  which  in  their  execution  occupy  a  long  time,  and 
this  service  can  not  be  constantly  under  the  control  or  even  the 
eye  of  the  Government  officers  responsible  for  its  execution. 

These  inherent  differences  can  not  be  removed  or  affected  by 
transferring  the  transportation  service  from  the  Quartermaster's 
Department  to  the  Subsistence  Department.  The  good  of  the 
service,  so  far  as  it  depends  fm  systems,  will  certainly  be  more 
apt  to  be  secured  by  having  the  transportation  for  the  whole 
Army  done  by  the  Quartermaster "s  Deiiartment,  as  now,  and 
pursued  therein  as  a  specialty,  which  its  importance  demands, 
than  liy  the  change  proposed. 

I  raise  no  (question  here  as  to  whether  the  piirchasing  of  siip- 
plies  could  be  done  by  the  Quartermasters  Department.  What 
I  mean  to  assert  is,  my  opinion  that  the  transportation  service 
for  the  entire  army  should  be  conducted  by  the  Quartermaster's 
Department. 

This  regulation  has  the  special  objection  of  not  stating  posi- 
tively whether  wagon  transportation  for  subsistence  stores  shall 
Ije  furnished  by  the  Quai-termaster  or  Subsistence  Department. 
The  latter  must  provide  the  railroad  and  water  transportation ; 
but  when  it  wants  wagon  transportation,  it  must  first  apply  for 
it  to  the  Quartenuaster's  Department ;  if  this  application  fails, 
it  then  gets  its  own  wagou.s,  etc.  Here  doubt,  confusion,  and 
delay  will  inevitably  arise.  Besides,  the  chiefs  of  these  two 
Bureaus  will  never  know  how  much  transportation  each  may 
have  to  furnish  during  the  year,  and  will  not  be  able  to  make 
understandingly  estimates  for  transportation  appropriations. 

Without  going  further  into  the  siibject,  I  venture  the  predic- 
tion that  the  jjroposed  regulation  would  in  time  of  peace  result 
in  confu.sion  and  unnecessary  expense,  and  in  time  of  war  in 
greater  mischief. 

(Pages  67,  68,  and  69.)  It  is  thought  to  be  hostile  to  the  l)est 
interests  of  the  service  that  artillery  and  engineer  forces  when 
assigned  to  Anny  corjjs  and  divisions  sliould  be  on  the  footing  of 
troops  "attached"  for  service  merely,  or  that  they  should  under 
such  circumstances  foi-m  special  and  to  a  degree  independent 
commands  under  officers  of  theii*  owti  corps  or  ann  of  service. 


K.5 

Tho  pavaiiraph  reforrod  to,  paiije  (iS,  evidently  coiitomplates 
officers  eoininaiuliiiK  engineers  or  artillery  forces  serving  with 
corps  or  divisions  shall  he,  in  a  measure,  independent  of  corps 
and  division  commanders  (this  may  certainly  he  inferred  from 
that  portion  of  the  paragraph  which  provides  for  their  appointing 
general  courts-martial,  etc.),  thus  giving  the  engineers  and  artil- 
lery superior  authority  in  matters  of  courts-martial  and  other- 
wise (-w-ithin  the  corps  or  division),  to  tlie  commanders  of  tho.s(> 
hodies.  This  would  place  the  corps  or  division  commanders  in 
subordinate  positions  to  the  artillery  and  engineer  commanders 
of  the  same  Army,  regardless  of  what  their  relative  rank  might 
be.  It  is  thought  to  he  common  sense  and  much  safer  that  those 
commanders  who  tight  the  troops  in  time  of  war,  and  are  respon- 
sible for  the  success  or  failure  of  the  operations,  should  have  the 
same  control  of  those  special  arms  as  they  have  over  the  other 
arms  not  designated  as  special,  rather  than  to  have  them  subject 
to  the  commands  of  officers  who  would  not  be  responsible  whether 
the  battle  was  lost  or  won.  Such  a  regulation,  when  brought  to 
the  test  of  practical  operation  in  the  presence  of  an  enemy,  would 
undoiibtedly  lead  to  confusion  and  failure. 

It  is  believed  that  the  effect  of  paragraph  9,  page  69,  would  be 
mischievous  and  subversive  of  discipline.  It  directs  officers  oi 
engineers  and  artillery  to  make  reports  of  ' '  their  operations  ir 
all  that  concerns  their  specialties  "  to  the  headquarters  of  theii 
respective  arms,  and  this  when  they  may  be  serving  immediately 
under  the  orders  of  corps  or  division  commanders,  and  notwith- 
standing they  are  r.  (paired  to  make  a  report  of  their  operations 
to  their  corps  or  other  immediate  commander,  which  he  might 
or  might  not  approve  in  detail,  a  copy  of  which  is  to  be  sent  to 
the  headqiiarters  of  their  special  arms  (without  even  waiting 
for  the  corps  commander's  remarks  or  approval) ;  they  are  here 
invited  to  give  their  own  versions  of  the  same  operations  in  a 
special  report,  a  cojiy  of  which  is  not  required  to  be  sent  to  the 
corps  commander,  and  which  is  not  even  directed  to  be  trans- 
mitted through  him,  thus  in  a  very  peculiar  way,  calling  for 
separate  reports  of  the  same  operations,  which  may  differ,  and 
one  of  which  is  concealed  from  the  view  of  the  corps  commander. 
In  regard  to  the  service  of  artillery  in  times  of  active  opera- 
tions, it  is  believed  that  the  most  i)racticable  and  efficient  system 
is  that  of  assigning  batteries  (from  the  reserve  artillery  of  the 


ion 

Army)  to  tlie  different  Army  corps,  amU placing  at  the  corps 

headqnarters  an  officer  of  that  arm  who  shall  perform  the  duties 

of  chief  or  commander  of  the  artillery  of  the  corps  under  the 

orders  of  the  corps  commander.     This  was  the  system  pursued 

in  the  Army  of  the  Potomac  in  the  latter  part  of  our  late  war, 

and  was  found  to  answer  well  its  purpose  when  strictly  carried 

out  and  not  interfered  with  by  the  chief  of  that  arm  at  superior 

headquarters,  who  may  or  not  be  on  the  ground,  and  who  may 

be  disposed  to  have  the  artillery  used  according  to  his  o\\ni  views, 

although  he  has  no  responsibility  (as  the  commander  of  the 

troops  has)  to  make  his  judgment  careful.     As  an  instance  in 

point,  when  this  system  was  interfered  with,  I  may  state  here 

that  at  "  Gettysburgh,'"  during  the  last  day  of  the  battle,  when 

I  conamanded  the  left  center  of  our  army,  composed  of  three 

corps,  there  was  a  portion  of  my  line  on  which  there  was  no 

infantry,  and  while  the  enemy's  great  cannonade  was  in  progress, 

just  previous  to  their  grand  assault,  I  rode  to  that  point  and 

found  that  the  guns  of  a  battery  posted   there  were   silent, 

although  other  batteries  on  the  line  were  firing  slowly.     I  sent 

orders  by  my  chief  of  artillery  to  the  commander  of  the  battery 

(which  happened  to  belong  to  the  reserve  artillery  of  the  Army, 

and  had  been  sent  up  to  strengthen  that  part  of  the  line  during 

the  assault  then  impending),  to  open  fire  at  once,  so  that  it  would 

appear  to  the  enemy  that  that  point  was  strongly  defended,  it 

being  very  undesirable  on  account  of  there  being  no  infantry 

there  that  the  enemy  should  select  that  point  for  their  attack. 

This  order  was  not  obeyed,  and  I  was  informed  that  the  battery 

commander  had  orders  not  to  fire,  from  the  chief  of  artillery  of 

the  Army  of  the  Potomac.     I  then  rode  to  the  battery  myself, 

and  was  actually  compelled  to  threaten  force  on  my  own  line  of 

battle  before  I  could  cause  the  battery  to  fire  upon  the  enemy.     I 

would  have  been  held  responsible  in  the  event  of  the  loss  of  the 

line,  while  the  chief  of  artillery  of  the  Army  would  have  had  no 

responsibility  in  that  event. 

The  length  of  this  communication  precludes  reference  to  other 

points  in  these  regulations  which  strike  me  as  defective. 

Respectfully  submitted. 

WiNFD  S.  Hancock, 

Major  General,  U.  S.  A. 
Gen.  W.  T.  Sherman, 

United  States  Army,  Washington,  D.  C. 


167 

War  Department, 
Washington  City,  January  27,  187^. 
Sir-  I  have  the  honor  to  inclose  for  your  consideration,  in  con- 
nection with  the  new  Army  Regulations,  copy  of  a  letter  dated 
December  80.  1873,  from  Col.  N.  A.  Miles,  Fifth  Infantry,  pre- 
senting objections  to  that  part  of  the  regulations  which  restricts 
the  tenure  of  office  of  regimental  staff  officers  to  two  years  con- 
tinuous service,  with  indorsements  thereon  of  the  Adjutant  Gen- 
eral and  Inspector  General  of  the  Army. 

Very  respectfully,  your  obedient  servant, 

William  W.  Belknap, 

Secretary  of  War. 

Hon.  John  Coburn, 

Chairman  Committee  on  Military  Affairs, 

House  of  Representatives. 


Headquarters  Fifth  United  States  Infantry, 

Fort  Leavenworth,  Kans.,  December  30,  1873. 
Sir  •  In  the  new  Army  Regulations  printed  for  the  use  of  mem- 
bers of  Congress,  and  to  be  acted  upon  during  the  present  session, 
appears  the  f  ollomng  paragraph :  ,  ■,  ^ 

'No  officer  will  be  appointed  adjutant  or  regimental  quarter- 
master, who  has  not  served  at  least  one  year  immediately  preced- 
ing such  appointment  ^nth  his  company,  and  no  officer  shall  hold 
a  staff  appointment  in  his  regiment  for  a  longer  period  than  two 
years  at  any  one  time. " 

To  the  adoption  of  this  paragraph  I  have  the  honor  to  urge  the 
following,  as  I  conceive,  cogent  objections. 

In  the  first  place,  from  the  standpoint  of  a  regimental  com- 
mander :  The  status  of  the  regimental  staff,  with  ref ereiic^e  to  the 
re-imental  commander,  is  very  closely  analogous  to  that  ot  the 
personal  staff  of  general  officers  with  reference  to  the  genera  , 
and  upon  this  latter  selection,  and  on  the  duration  of  such  detail 
no  other  restriction  is  in  fact  imposed  than  that  of  the  rank  of 
the  officers  selected.  A  regimental  commander  m  selecting  his 
staff  desires  of  course  to  secure  competent,  well-informed  officers 
of  undoubted  probity;  but  beyond  this,  and  a  matter  scarce  y 
second  to  it,  he  desires  that  his  staff  should  be  so  thoroughly 
honorable,  congenial,  and  in  sympathy  with  him,  that  the  most 


108 

intimate  official  and  personal  relations  may  subsist  between 
tliem.  and  that  his  ideas  and  plans  may  be  cordially  seconded  and 
carried  out  by  them.  Only  a  slight  acquaintance  with  men  is 
necessary  to  prove  that  the  first  class  of  qualities  frequently  exist 
without  the  latter. 

Under  existing  orders  a  commanding  officer  is  made,  conjointly 
with  his  staff,  responsible  for  the  public  property  for  which  the 
staff  officer  makes  returns.  Such  responsibility  should  not  exist 
without  the  corresponding  liberty  to  select  the  subordinates,  in 
whose  honor  and  probity  he  has  confidence,  to  be  intrusted  vnth 
the  custody,  transfer,  and  expenditure  of  the  property  in  ques- 
tion. If,  then,  a  regimental  commander  should  find  those  who, 
in  his  estimation,  combine  in  a  good  degree  these  essential  qual- 
ities, why  should  he  be  deprived  of  their  services  immediately 
upon  becoming  thoroughly  acquainted  with  them? 

If  the  system  of  rotation  or  transfer  of  officers  from  staff  to  line 
duties  is  addiiced  in  support  of  the  proposed  change,  I  would  re- 
spectfully invite  attention  to  the  fact  that  without  such  change 
and  under  the  present  system  that  desirable  result  is  secured  in 
the  case  of  regimental  staff  officers  alone  of  the  entire  Army. 
For,  before  receiving  an  appointment  as  regimental  adjutant  or 
quartermaster,  a  subaltern  must  serve  long  enough  with  his  reg- 
iment to  prove  his  capacity  and  general  worthy  character,  and 
this  time  usually  includes  his  entire  service  as  second  lieutenant, 
and  a  part  of  his  service  as  first  lieutenant,  at  least  five  years  in 
all  as  an  average.  Having  been  appointed  a  regimental  staff 
officer,  he  can  only  hold  that  position  while  a  subaltern,  and,  of 
necessity,  returns  to  duty  in  the  line  immediately  upon  promo- 
tion to  a  captaincy ;  thus,  as  I  have  said,  experiencing  the  sup- 
posed desirable  alternation  of  line  and  staff  duties.  If  the  change 
from  staff  to  line  duties  is  considered  advisable,  why  should  not 
this  principle  be  equally  applicable  to  the  general  staff  of  the 
Army  ? 

From  the  standpoint  of  a  regimental  staff  officer  I  would  urge 
that  frequent  changes,  involving  changes  of  station  and  of  rela- 
tions with  officers,  would  necessitate  great  expense ;  that  large 
property  accountability  is  incurred,  and,  in  the  settlement  of 
accounts,  much  difficulty  results  if  frequent  changes  are  required ; 
that  at  least  half  of  the  two  years  permitted  would  be  required  to 
become  thoroughly  accustomed  to  new  duties ;  and  that  (inasmuch 


as  each  new,  permanent  lei^inienlal  cDniniander  generally  makes 
a  now  selection  of  statf  officers)  from  death,  resignation,  retire- 
ment, or  permanent  detachment  of  regimental  commanders,  the 
tenure  of  office  of  a  regimental  staff  officer  is  now  very  preca- 
rious, and  instances  are  rare  in  which  some  one  of  these  casualties 
does  not  return  such  officer  to  line  duty  long  before  he  receives 
the  captaincy  which,  as  before  stated,  necessarily  terminates  his 
staff  position. 

The  regimental  commanders,  with  the  aid  of  their  staffs,  admin- 
ister the  affairs  of  the  regiments,  that  is  of  the  entire  line  of  the 
Army.  Inasmuch  as  the  proposed  change  would  affect  disad- 
vantageously  the  administration  of  affairs  by  these  officers,  it 
follows  that  the  Army  would  not  be  benefited  but  injured  by  it. 
and  I  most  urgently  request  that  these  objections  may  be  referred 
to  the  Military  Ccmimittees  in  the  Houses  of  Congress,  to  be  dtily 
weighed  before  the  new  regulations  are  adopted. 

I  have  the  honor  to  be,  very  respectfully,  your  obedient  serv;int, 

Nelsox  a.  Miles, 
Colonel  Fifth  Uiiited  States  Infantrij, 

Bvt.  Maj.  Gen.  U.  S.  A. 

The  Hon.  Sec;retary  of  War, 

Washington,  D.  C. 

[Indorsements.] 

Headquarters  Department  of  the  Missouri, 

Fort  Leavemi-orth,  Kans.,  January  ,i,  187 J,. 
Respectfully  forwarded  to  the  assistant  adjutant  general,  head- 
quarters Military  Division  of  the  Missouri. 

The  general  views  of  Colonel  Miles,  Fifth  Infantry,  on  the 
within  subject,  are  fully  concurred  in  by  the  department  com- 
mander. .^ 

John  Pope, 

Bvt.  MaJ.  Gen.  U.  S.  A.,  Commanding. 
Adjutant  General's  Office,  January  17,  1874- 
Respectfully  submitted  to  the  Secretary  of  War.  There  is 
much  force  in  Colonel  Miles's  objections  to  the  regulati(ms  referred 
to.  There  may  be  a  few  cases  where  colonels  will  not  make  the 
best  selections,  but  they  will  be  very  few  compared  to  those  where 
unsuitable  officers  would  be  placed  in  regimental  staff  positions 
bv  detail. 

E.  D.  TOWNSEND, 

Adjutant  General. 


iro 

War  Department, 
Inspector  General's  Office,  January  21,  1874. 

Respectfully  returned  to  the  Secretary  of  "War. 

The  paragraph  herein  alluded  to,  was  introduced  by  the  board 
for  the  reason  that  regimental  staff  duties  are  generally  regarded 
as  more  desirable  than  service  with  companies ;  and  as  there  are 
generally  several  subalterns  in  every  regiment  competent  to  fill 
those  positions,  they  woiild  endeavor  to  quali,fy  themselves  for 
the  performance  of  staff  duties  if  the  regulation  was  adopted. 

In  this  way  a  much  larger  number  of  officers  would  be  educated 
in  staff  duties  than  under  the  existing  system,  and  would  be 
available  for  organizing  large  amiies  in  time  of  war,  or  for  pro- 
motion in  staff  corps  or  departments. 

I  see  no  objection  to  this  paper  being  refeiTed  to  the  Military 
Committee  of  the  House  of  Representatives,  as  Colonel  Miles 
desires. 

R.  B.  Marcy, 
Inspector  General  U.  S.  A. 


Fort  McPherson,  Nebr.,  October  SO,  1873. 

My  Dear  General:  The  copy  of  proposed  Regulations  for 
the  Army,  including  revised  Riiles  and  Articles  of  War,  was  duly 
received.  I  have  glanced  over  them  Avith  considerable  care,  and 
hope  they  vdU  be  adopted  by  Congress.  The  suggestion  of  the 
Secretary  of  War  should,  by  all  means,  be  included,  viz,  "sub- 
ject to  such  alterations  as  the  President  may  from  time  to  time 
adopt." 

There  is  one  point  to  which  I  would  in\dte  special  attention  (if 
I  am  not  acting  officiou.sly  in  so  doing).  The  Articles  of  War 
and  Regulations  should  be  very  slightly  modified  so  as  to  con- 
form to  G-eneral  Order  No.  o.  Headquarters  Army,  Washington, 
D.  C,  June  20,  1873.  This  order  was  issued,  after  the  new  regu- 
lations had  been  reported,  for  good  and  sufficient  reasons ;  it  is 
in  strict  accordance  with  the  spirit  of  existing  laws,  and  pro- 
duces uniformity  and  harmony  in  the  service. 

The  only  change  required  would  be  simply  to  add  to  the  para- 
graph preceding  the  Rules  and  Articles  as  now  numbered,  page 
204,  these  words :  ' '  And  the  term  '  company '  shall  embrace  the 
jninimum  unit  for  administration  in  all  arms;"  and  omit  the 


in 

words  "troop  and  battery"  from  articles  13,  35.  3S,  39,  44,  45,  50, 
73  74  and^<4;  and  direct  that  in  printing  the  Regulations  the 
Articles  of  War  shall  be  adhered  to.  This  will  require  but  few 
and  very  slight  changes. 

I  can  not  enter  more  into  detail  without  troublmg  you  with  a 
Ion-  letter  Would  like  very  much  to  have  two  hours'  interview 
with  the  Military  Committee  before  action  is  taken  on  these 
regulations,  but  that  is  not  in  my  power.  As  a  whole  they  are 
excellent,  and  by  far  the  best  system  we  have  ever  had. 
I  am.  General,  very  truly  yours, 


J.  J.  Reynolds. 


Hon.  John  Coburn, 

Ind ia napolis,  India na. 


War  Department, 
Washington  City,  February  J,  1S74- 
Sir-  I  have  the  honor  to  inclose  for  your  consideration,  in  con- 
nection with  the  new  Regulations  for  the  Army,  copy  of  a  letter 
of  the  l()th  ultimo  from  Captain  Kinzie  Bates,  First  Infantry, 
su-gesting  the  appointment  of  councils  of  administration,  c-om- 
nosed  of  enlisted  men,  to  audit  the  accounts  of  "company  funds,  ' 
with  opinion,  indorsed  thereon,  of  Maj.  Gen.  W.  S.  Hancock, 
commanding  Military  Division  of  the  Atlantic. 
Very  respectfully,  your  obedient  servant, 

Wm.  W.  Belknap, 

Secreta<y  of  War. 

Hon.  John  Coburn, 

Chairman  Committee  on  Military  Affairs, 

House  of  Bepresentatives. 


Fort  Brady,  Michigan,  January  10,  lS7i. 
Sir-  The  suggestion  of  General  Ord,  that  where  enlisted  men 
are  tried  by  courts-martial,  that  some  of  their  peers  be  detailed 
to  sit  on  their  courts,  has  re-awakened  an  idea  of  mine  in  regard 
to  the  company  fund.  I  do  not  for  a  moment  imagine  that  the 
follo^ving  plan  is  original  with  me,  but  as  I  have  never  seen  any 


]  7-2 

mention  of  it,  I  simply  forward  it  in  the  hope  that  it  may  be 
worthy  the  attention  of  the  Commanding  General.  Numerous 
complaints  are  made  in  the  Army  and  Navy  Journal  in  regard 
to  the  expenditure  of  the  company  fund.  I  believe  these  com- 
plaints can  be  done  away  with  by  a  company  council  of  admin- 
istration to  consist  of  three  enlisted  men,  one  of  whom  should  be 
a  noncommissioned  officer,  who  should  audit  the  accounts.  The 
proceedings  to  be  approved  by  an  officer's  council,  consisting  of 
the  captain  and  subalterns  of  the  company.  In  case  of  a  disap- 
proval of  the  enlisted  men's  council  by  the  officers,  the  matter 
to  be  referred  to  the  colonel  of  the  regiment  for  his  decision. 
I  remain,  sir,  very  respectfully,  youx's,  etc. , 

KiNziE  Bates, 
Captain  First  Infantry,  Commanding  Post. 
Assistant  Adjutant  General, 

Military  Division  of  the  Atlantic. 

[Indorsenieiit.] 

Headquarters  Division  of  the  Atlantic, 

JVeir  York,  January  24,  IS74. 

Respectfully  forwarded  to  the  assistant  adjutant-general,  head- 
quarters of  the  Army. 

I  regard  the  suggestion  made  within  as  worthy  of  considera- 
tion in  connection  with  the  adoption  of  a  new  code  of  regula- 
tions. 1  understand  that  the  messing  expenditures  of  squads  in 
the  British  service,  though  supervised  by  their  officers,  are  con- 
trolled by  the  men  themselves  on  a  plan  similar  to  the  one  pro- 
posed for  the  company  fund,  and  that  it  works  admirably. 

That  part  of  the  regulations  in  regard  to  company  funds,  now 
before  Congress,  authorizes  an  inspection  of  the  said  fimd  by  the 
enlisted  men.  The  object  of  the  new  regulations  in  this  partic- 
ular would,  I  think,  more  probably  be  obtained  by  some  such 
systematic  plan  as  that  herein  suggested,  than  by  the  indefinite 
one  in  the  proposed  regulations.  (See  page  45  of  Code  now  before 
Congress,  or  House  Doc.  85  of  Forty-second  Congress,  third  ses- 
sion. )  I  do  not,  however,  commit  myself  to  General  Ord's  sug- 
gestion as  to  detailing  enlisted  men  on  coiirts-martial. 

WiNFD  S.  Hancock, 
Major  General  Cominanding. 


1  ::5 

Inspector  General's  DKrAUTMEXT, 

Neic  York  City,  Fehniarij  //,  1874. 
General  •  I  have  the  honor  to  submit  th(>  foHowing  in  response 
t..  the  reciuest  of  yoiir  committee,  with  regard  to  the  code  of  Army 
Regiihitions  recently  prepared  by  aboard  of  officers  and  submitted 
to  Congress  for  its  action  thereon. 

The  foHowing  mentioned  changes  are  respectfully  suggested, 

with  reasons  therefor :  ^  ■    ^     ^      •• 

(Page  3.)  In  first  line,  last  paragraph,  insert  before  ••mtantry, 
the  word  ■ '  cavalry, "  and  in  the  second  line  omit,  " '  in  the  c^avulry 

the  troop." 

Reason-  To  accord  with  War  Department  orders. 

(Pa^e  r.  )  Add  to  paragraph  four,  '"and  the  Secretary  of  War" 
may  authorize  the   enlistment  of  general-service  men  for  the 
inspectors-general. " 

Reason    Because  no  clerks  are  furnished  inspectors-general, 
who  have  important  and  responsible  duties  to  perform  retiuiring 

clerical  aid. 

(Page  15.)  Omit  paragraph  three  under  Article  Xll. 
Reason-  This  paragraph  would   prohibit  in   some   cases  the 
appointment  of  worthy  and  suitable  officers  who  may  have  been 
ordered  on  duty,  not  with  troops. 

(Page  15.)  Next  paragraph,  omit  first  two  and  third  lines  to 
include  ' '  President, "  and  then  read,  ' '  Colonels  will  not  be  absent 
from  their  commands  longer  than  two  years,"  etc. 

Reason:  Because  the  paragraph  as  it  stands  would  often  pre- 
vent details  demanded  by  the  good  of  the  service. 

(Page  16. )  Under  Article  XIV,  after  paragraph  five,  add  this 
paragraph:  '"The  General  in  Chief  may  grant  leaves  of  absence 
for  a  period  of  four  months." 

Reason:  Authority  for  the  General  in  Chief  to  grant  leaves  of 
absence,  seems  to  have  been  omitted. 

(Page  18. )  Under  Article  XVI.  in  first  line  of  fourth  paragraph, 
substitute  for  "censure,"  -'admonition." 

Reason :  ' '  Censure  "  implies  punishment,  which  should  only  be 
inflicted  after  a  legal  hearing,  conviction,  etc. 

(Page  22. )  Under  Article  XXI.  first  paragraph,  change  to  read, 
•'the  commander  of  a  post  may  give  furloughs  to  soldiers  of  his 
command  as  he  shall  judge,"  etc. 


K4 

Reason :  The  companies  of  a  regiment  are  generally  stationed 
at  several  posts,  and  sometimes  in  different  districts  and  depart- 
ments, over  which  the  regimental  commander  has  no  control. 

(Page  35.)  In  last  line  of  fourth  paragraph,  read  "three  years" 
for  "  two  years. " 

Reason :  This  period  I  think  better. 

(Page  35.)  In  the  second  line  of  the  next  paragraph,  read  "six 
months'"  for  "three  months." 

Reason :  Same  as  above. 

(Page  38. )  To  the  last  paragraph  add,  "and  bedding." 

Reason:  An  important  matter,  affecting  health  and  personal 
cleanliness. 

(Page  39.)  In  the  first  paragraph,  second  line,  after  the  fir.st 
■ '  the  ■'  add  • '  quarters. " 

Reason :  Probably  unintentionally  omitted. 

(Page  44.)  In  the  second  line,  fifth  paragraph,  substitute 
"thirty-three  and  one-third  per  cent."  for    •  fifty  per  cent." 

Reason:  This  sa%-ing  comes  from  the  soldier's  ration,  and 
should  be  so  used  as  to  contribute  the  most  to  his  benefit,  which 
will  be  the  case  by  giving  the  larger  portion  to  the  "  post  fund," 
there  being  usually  few  companies  at  regimental  headcpiarters. 
This  change  accords  with  the  A-iews  of  oflBcers  generally,  as 
expressed  to  me. 

( Page  53. )  Under  Article  XL.  fourth  paragi'aph.  in  first  line, 
add  after  •"moniing  "  '-the  company  quarters.  me.sses,  and  kitch- 
ens, daily.  ' 

Reason :  A  very  necessary  and  important  duty. 

(Page  100. )  In  last  line  of  last  paragi-aph.  change  to  read 
after    •will  be."    "covered  into  the  United  States  Treasury.  ' 

Reason :  Required  by  act  of  Congress. 

Tlie  eighty-eighth  article  of  war  should  be  changed,  extend- 
ing the  limitation  of  time  ^^^thin  Avhich  a  person  may  be  brought 
to  trial. 

Reason :  For  the  interests  of  the  service. 

Remarks. — The  above-suggested  alterations  are  what  appear 
to  me  proper,  from  the  limited  time  I  have  had  to  examine  the 
sitbject,  in  addition  to  those  made  in  the  War  Department  copy, 
which  have  been  marked  in  the  copy  received  from  you. 

I  think  it  advisalile  not  to  make  the  code  of  regulations  under 
consideration  law,  but  leave  them  subject  to  revision  and  change 
by  the  President  of  the  United  States. 


175 

A  reason  f-r  this  is.  that  it  is  .lifficiilt  ..r  inipossil)!^  to  make 
res?ulations  perfect  and  such  as  will  properly  meet  all  the  exi- 
gencies of  the  military  service  arising  under  the  vicissitudes 
affec-ting  it ;  therefore  there  should  he  authority  in  the  President 
to  make  changes  that  experience   and  circumstances  seem  to 

demand. 

The  old  edition  of  Army  Regulations,  of  18(>;5,  is  exhausted, 
many  officers  being  without  a  copy,  and  in  consequence  of  many 
changes  therein  having  been  made  by  acts  of  Congress,  and 
orders,  the  Army  is  much  in  need  of  a  new  code  at  this  tune. 

The  Articles  of  War  should  be  made  law ;  they  are  the  statutes 
for  the  Army,  to  protect  the  constitutional  rights  of  officers  and 
enlisted  men,  and  others  connected  therewith,  to  insure  justice, 
punish  offenses,  govern  the  disbursement  of  public  moneys,  pro- 
vide for  the  administration  of  the  military  branch  of  the  public 
service,  and  promote  its  efficiency,  etc. 

I  think  thev  need  revision  and  changing  in  some  respects. 

A  penal  code  of  punishment,  graduated  to  the  character  and 
magnitude  of  offenses,  should  be  established  for  the  guide  of 
courts-martial,  the  better  to  insure  even  justice. 

This  report  has  been  delayed   somewhat  from   unavoidable 

causes. 

I  am   General,  very  respectfully,  your  obedient  servant, 

N.  H.  Davis, 
TnsjK'ctor  General,  U.  S.  A. 
The  Hon.  Chairman  of  the  Mii.itary  Committee, 

House  of  Representatives,  Washington,  D.  C. 


Gen.  John  Coburn, 

Chairman  of  Militarn  Coiiindttee, 

House  of  Representatives. 

Sir:  In  compliance  with  your  request,  I  have  the  honor  to 
submit  in  writing,  my  views  of  the  new  Army  Regulations,  and 
the  emendations  that,  in  my  judgment,  should  be  made  before 
their  final  adoption  by  Congress,  "as  the  rules  for  the  govern- 
ment of  the  Armv." 

The  old  Rules  and  Articles  of  War  adopted  by  act  of  Congress 
approved  April  10,  1^^0(5,  borrowed  mainly  from  England's  mili- 
tary act,  have  been  very  greatly  improved  and  simplified  by 


17  Cj 

elimination  of  parts  inapplicable  to  our  military  system,  and  so 
otherwise  changed  as  to  constitute  a  very' complete  code  for  the 
administration  of  justice  and  enforcement  of  discipline  in  the 
Army. 

As  a  whole  system  of  regulations  intended  to  carry  into  prac- 
tical effect  the  laws  of  Congress,  they  are  a  very  great  improve- 
ment on  any  previous  compilation ;  and  it  is  with  hesitation  I 
have  suggested  the  few  changes  herein  inclosed.  My  object  has 
been  to  so  change  a  few  of  the  primary  regulations  that  have 
controlling  authorization  over  all  others,  as  to  avoid  conflict  of 
military  authority  and  fix  more  definitely  the  purview  of  the 
officers  of  the  General  Commanding  the  Army  and  the  Secretary 
of  War;  the  General  being  in  my  view  strictly  military  and 
executive,  and  the  Secretary  civil  and  administrative. 

When  the  boundaries  of  these  two  officers  are  authoritatively 
established,  and  the  political  patronage  of  the  great  contract  and 
supplying  departments  is  severed  from  the  military,  fixing  the 
command,  government,  and  discipline  of  every  military  arm  in 
the  General,  the  vicious  influences  that  go  to  weaken  discipline 
and  the  effectiveness  of  arms  will,  in  my  judgment,  be  forever 
avoided. 

I  am,  very  respectfully,  your  obedient  servant, 

B.  S.  Roberts, 
Brevet  Brigadier  General   U.  S.  A.  (retired). 


NEW    ARMY    REGULATIONS. 

First.  As  to  the  recommendation  in  the  letter  of  the  Secretary 
of  War  transmitting  to  Congress  the  new  regulations  for  the 
Army,  with  revised  and  corrected  Articles  of  War,  that  if  these 
regulations  are  formally  approved  by  Congress,  ' '  they  be  made 
subject  to  such  alterations  as  the  President  may  from  time  to 
time  adopt,"  I  will  say  that  if  Congress  gives  such  discretionary 
power  to  the  President,  it  will  confer  on  him  and  his  legal  rep- 
resentive,  the  Secretary  of  War,  authority  over  the  Army  the 
Congress  can  not  under  the  Constitution  delegate. 

The  Constitution  (section  8,  Article  I),  -n  seventeen  para- 
graphs, fixes  certain  sovereign  legislative  powers  in  Congress 
that  are  not  transferable  to  the  Executive  or  any  Department  of 


177 

the  Government.  And  the  thirteenth  paragraph  is  in  these 
words-  "The  Congress  shall  have  power  to  make  rules  for  the 
government  and  regulation  <^f  the  land  and  naval  forces  " 

The  powers  in  this  section  of  the  Constitution  take  the  char- 
acterization of  sovereignty,  are  forbidden  to  the  States  in  section 
10  and  are  exclusively  and  unalterably  fixed  in  Congress.  Con- 
o-ress  can,  therefore,  with  the  same  propriety  authorize  the 
President  or  his  military  representative,  the  Secretary  of  War, 
"from  time  to  time  to  declare  war  or  to  coin  money,  as  "to 
alter,  from  time  to  time,  the  regulations  made  by  Congress  for 
the  government  of  the  Army. " 

Second.  Strike  out  on  page  3,  paragraph  relating  to  the  engi- 
neers the  word  "civil."  and  substitute  for  it  the  word  "mixed; 
because  bv  law  of  Congress  officers  of  the  Army  can  not  discharge 
civil  offices  without  vacating  their  military  commissions,  and, 
besides,  mixed  better  characterizes  the  work  assigned  to  an 
officer  of  the  Army  than  the  word  civil. 

Third  Strike  out  the  words  "  regular  constitutional  m  first 
line  of  Article  II  defining  the  office  of  Secretary  of  War,  and 
substitute  for  them  the  word  ' '  lawful.  •'  The  office  of  Secretary 
of  War  is  not  an  office  created  by  the  Constitution,  but  by  a  law 
of  Congress,  approved  August  7,  1789.  He  cannot  therefore  be 
said  to  be  "the  regular  constitutional  organ  of  the  President 
but  he  is  the  lawful  organ.  For  the  same  reason  strike  out  the 
words  "and  constitutional  "  in  the  fourth  line. 

Fourth  It  is  clear  to  my  mind  that  Article  III  requires  emeii- 
dation  and  a  more  definite  declaration  of  the  scope  of  the  mili- 
tarv  function  of  the  Commander  in  Chief  of  the  Army. 

The  Constitution,  that  makes  the  President  the  Commander  m 
Chief  of  the  Army  and  Navy,  never  contemplated  giving  to  him 
the  personal  administration  or  personal  supervision  of  the  Army 
whether  in  the  field  in  time  of  war,  or  in  its  garrisons  m  time  ot 
peace  His  office  under  our  form  of  government  is  mainly  civil 
and  by  far  transcends  in  its  magnitude  the  military  administra- 
tion of  the  Army  under  the  laws  of  Congress.  It  was  clearly 
the  intention  of  the  framers  of  the  Constitution  t.i  vest  m  Con- 
gress the  control  of  the  Army.  And  this  intention  is  unequivo- 
cally declared  in  the  thirteentli  paragraph  of  section  8  of  the 
Constitution,  in  the  words  "the  Congress  shall  have  power  to 

13190 Vi 


178 

make  rules  for  the  government  and  regulation  of  the  land  and 
naval  forces." 

Add  to  this  his  constitutional  obligation  imposed  by  section  3, 
Article  II,  ' '  he  shall  take  care  that  the  laws  be  faithfully  exe- 
cuted," and  the  logical  legal  deduction  is  plain,  that  his  powers 
as  Commander  in  Chief  of  the  Army  and  Navy  of  the  United 
States,  as  conferred  in  section  2,  Article  II,  Constitution,  are 
subordinate  to  Congress,  and  limited  at  its  discretion. 

The  framers  of  the  Constitution  intended  a  befitting  title  in 
bestowing  on  the  President  of  the  United  States  the  office  of 
Commander  in  Chief  of  the  land  and  naval  forces,  and  nothing 
more.  If  they  had  intended  to  confer  on  him  any  supreme  com- 
mand to  be  exercised  as  a  constitutional  right,  they  would  not 
have  reserved  to  Congress  the  power  to  govern  the  Army,  and 
require  him  ' '  to  see  that  the  laws  of  Congress  were  faithfully 
executed." 

If,  in  fact,  the  Constitution  had  conferred  on  the  President  the 
command  of  the  Army  and  Navy,  and  added  to  his  other  execu- 
tive functions  of  patronage,  appointment,  and  the  exchequer  of 
the  Government,  the  prerogative  of  the  sword,  his  powers  woiild 
have  been  more  dangerous  to  liberty  than  any  ever  before  exer- 
cised by  any  monarch  since  regal  Rome  was  disintegrated  by 
the  military  dominion  of  its  Caesars. 

But  such  was  not  the  polity  or  intention  of  the  framers  of  the 
Constitution,  and  no  such  powers  have  been  conferred  on  the 
President,  by  implication  or  otherwise;  but,  on  the  contrary,  all 
such  authority  is  positively  interdicted  to  him  by  section  14, 
Article  I,  Constitution,  and  vested  in  Congress. 

What  the  General's  powers  are,  should  therefore,  in  my  judg 
ment,  be  more  clearly  enumerated  in  this  article.  As  it  now 
reads,  paragraph  1,  standing  alone,  would  fix  properly  the  mili- 
tary status  of  the  General  in  Chief  of  the  Army.  But,  by  the 
qualifications  in  paragraphs  2,  3,  and  4,  that  will  permit  the 
Secretary  of  War  at  any  time,  as  the  representative  of  the  Presi- 
dent, to  interfere  with  the  military  orders  of  the  General  in 
Chief,  only  requiring  orders  of  the  Secretary  of  War,  through 
the  General  as  a  military  channel,  to  be  published  that  may 
"otherwise  direct,"  all  the  military  operations  of  the  Army  may 
be  obstructed,  and  every  order  the  General  may  issue  to-day  can 
be  canceled  to-morrow  by  the  paramount  order  of  the  Secretary 
of  War. 


179 

In  military  Iuavs,  regulations,  and  orders,  there  slioiild  be 
neither  vagueness,  ambiguity,  or  possible  misinterpretation,  so 
that  conflict  of  authority  or  antagonism  in  command  can  be 
made  reasonably  possil  )le.  Every  commander's  status  should  be 
clearly  defined,  in  order  that  harmony  in  the  execution  of  mili- 
tary administration  shall  be  unalterably  fixed.  In  this  way 
alone  can  the  efficiency  of  armies  be  established,  and  uniform 
discipline  and  justice  enforced. 

I  would  therefore  suggest  that  paragraphs  2,  U.  and  4.  in  Article 
III  be  stricken  out  and  the  following  substituted:  '-In  all  mat- 
ters relating  to  the  fiscal  administration  of  the  Army,  the  Secre- 
tary of  War  has  supreme  control,  and  he  alone  is  responsible  for 
the'  faithful  and  prompt  settlement  of  all  disbursing  ofdcers' 
accounts,  and  the  economical  application  of  the  public  moneys 
appropriated  for  the  Army.  So  far  as  payments  and  disburse- 
ments are  made  at  military  posts  to  troops,  or  on  account  of 
military  supplies,  or  for  military  movements,  it  is  made  the 
duty  of  the  General  commanding  to  see  that  they  are  made  m 
conformity  with  the  regulations  and  orders  of  the  Secretary  of 

War." 

The  oface  of  the  Secretary  of  War  has  gro\\ni  into  great  pro- 
portions of  power  through  enormous  patronage  by  the  contract 
system  for  vast  supplies  of  war;  and  if  to  this  power  is  super- 
added militarv  dictation,  it  would,  in  the  hands  of  an  unfaithful, 
unscrupulous^  or  ambitious  Secretary,  become  one  of  danger  to 
liberty,  and  its  doors  would  be  thr(5%\ni  ajar  to  fraud  and  cor- 
ruption, with  military  force  to  give  it  impunity  and  freedom 

from  search. 

The  office  of  the  senior  General  of  the  Army,  by  its  very  nature 
and  life-tenure,  is  more  identified  with  the  paramount  interests 
of  the  Army  than  any  other,  and  very  greatly  transcends  in  its 
military  reach  into  the  discipline  and  effectiveness  of  the  per- 
sonnel of  the  rank  and  file,  than  that  of  the  Secretary  of  War. 
Besides,  it  is  unassociated  mth  political  and  partisan  interests, 
with  patronage  and  its  mischievous  influences,  than  that  of  the 
Secretary  of  War;  the  latter  being  an  office  changing  at  brief 
periods,  'and  never  identified  exclusively  with  purely  military 
matters  and  their  progression  and  improvements  in  the  art  and 
science  of  war.  The  General  is  an  educated  soldier,  has  exclu- 
sively the  interests  of  his  profession  at  heart,  knows  more  inti- 


180 

mately  the  personnel  of  the  Army  than  the  Secretary  of  War 
possibly  can,  and  his  pride  and  ambition  arfe  to  elevate  arms,  and 
give  to  his  Army  its  maximum  of  efficiency  and  discipline. 

Political  and  personal  favoritism  are  the  banes  of  armies,  and, 
if  exercised  in  any  considerable  degree,  are  more  destructive  of 
military  merit,  esjyrit  of  profession,  than  all  other  disturbing  ele- 
ments in  military  administration.  They  are  much  more  likely 
to  find  their  vs^ay  into  service  through  a  Secretary  of  War  than 
through  an  old  Army  General,  whose  office  is  not  transient,  or 
in  any  way  influenced  by  the  inducements  of  popular  applause  or 
political  favor. 

Fifth.  In  fourth  line,  paragraph  2,  Article  IV,  strike  out  the 
words  ' '  Secretary  of  War  "  and  substitute  the  word  ' '  President. " 
If  this  paragraph  stands  uncorrected  it  would  confer  military 
function  on  the  Secretary  of  War  in  person.  He  is  a  civil  offi- 
cer, and  can  not,  without  the  direction  of  the  President,  and  as 
his  aid,  give  any  military  orders.  This  part,  as  it  now  stands, 
submits  grave  military  subjects  to  the  "discretion  of  the  Secre- 
tary of  War,"  regardless  of  the  President. 

Sixth.  Insert  in  Article  I  an  additional  paragraph,  in  these 
words :  ' '  Wherever  in  these  regulations  the  words  '  Secretary  of 
War '  are  used,  they  will  be  construed  as  meaning  the  repre- 
sentative minister  of  the  President  in  his  executive  office  as 
Commander  in  Chief  of  the  Army."  This  will  give  authoriza- 
tion to  all  of  his  orders  as  emanating  directly  from  the  President 
as  the  military  head  of  the  land  forces. 

Seventh.  In  paragraph  4,  Article  IX,  strike  out  the  words  "the 
engineers"  at  the  end  of  the  third  line,  and  in  paragraph  5  strike 
out  the  words  "whether  superior  or,"  in  fourth  line.  Engineers 
should  not  command  troops  where  there  is  a  regimental  com- 
missioned officer,  nor  should  a  superior  officer  salute  his  junior 
officer  because  he  is  an  adjutant.  Besides,  if  the  engineer  offi- 
cer can  assume  command  by  virtue  of  paragraph  4,  then  para- 
graph 10,  same  article,  is  stultified  and  inoperative. 

Eighth.  In  paragraph  (5,  Article  XIV,  strike  out  the  words 
"Secretary  of  War,"  in  fourth  line,  and  substitute  for  them 
"General  of  the  Army."  And  also  strike  out  the  words  "War 
Department"  in  paragraph  15,  fourth  line,  and  substitute  for 
them  "General  of  the  Army."  In  Article  XV  strike  out  the 
words  "War  Department "  from  paragraph  1,  second  line,  and 


181 

sxabstitnte  "General  of  the  Army.'  and  strike  ont    'Secretary  of 
War"  from  fifth  line  of  paragraph  :5  and  substitute  •■General  ot 

*^  Nhith ^On  page  33,  article  headed    'Grooming,"  strike  out  all 
of  first  paragraph  and  substitute  the  following:  "Every  coni^ 
missioned  officer  of  a  troop  of   cavalry  or  mounted  battery  ot 
artillery,  not  sick  or  prevented  by  other  duty,  will  attend  morn 
ing  and  evening  stable-call,  and  personally  superintend  the  thor- 
ough grooming,  the  feeding  and  watering  of  the  hors^es.     When 
thegmomingis  finished  the  horses  should  be  formed  mhne  by 
the  noncommissioned  officers  in  charge  of  squads,  mth  the  men 
at  position  'Stand  to  horse ;'  when  the  officers,  accompanied  by 
the  blacksmith,  shall  inspect  each  horse  and  require  regrooming 
if  it  has  not  been  thoroughly  done,  and  bring  to  the  notice  of  the 
blacksmith  horses  that  have  cast  their  shoes  or  require  reshoe- 
iiio-      Thev  should  also  at  this  inspection  see  that  every  soldier  is 
present  ^^•ith  his  horse,  unless  detained  by  sickniess  or  on  other 
indispensable  dutv  he  can  not  leave. "     As  a  rule,  every  soldier  of 
a  troop  of  cavalrv  or  mounted  battery  of  artillery,  not  on  guard 
or  in  hospital,  should  be  required  to  attend  stable-call  and  groom, 
water,  and  feed  his  o^^^l  horse.     AfPection  and  confidence  between 
soldier  and  horse  would  in  this  manner  be  cultivated,  so  that  the 
saving  "the  horse  knoweth  his  rider"  might  be  realized.     Tlie 
old  cavalry  rule,  "horse  and  rider  should  never  be  separated,    is 
the  onlv  safe  law  for  making  good  cavalry. 

Tenth    First  paragraph  of  Article  XXXIII  makes  "command- 
ers of  regiments  responsible  for  the  instruction  and  discipline  ot 
their  regiments."     Paragraph  8.  however,  completely  stultifies 
para-i-aph  1,  or  at  least  makes  it  inoperative  by  its  restrictions 
on  their  rights  to  inspect  companies  serving  with  other  com- 
manders     They  can  not  inspect  companies  of  their  regiments 
serving  at  other  posts  oftener  than  once  a  year,  and  then  only  by 
^drtue  of  orders  from  the  General  of  the  Army.     This  is  all  well 
enough  as  applied  to  artillery  and  infantry  regimental  command- 
ers   in  whose  regiments  the  details  of   duties  and  administra- 
tion of  different  posts  shbuld  be  under  regulations  identically  the 
same      But  when  cavalry  companies  are  serving  at  infantry  or 
artillery  posts,  as  the  regimental  duties  of  cavalry  differ  mate- 
riallv  from  the  regimental  duties  of  artillery  and  infantry,  the 
regimental  regulations  and  orders  of  cavalry  commanders  should 
be^enforced.  whoever  may  be  in  command  of  the  post. 


189 

I  would,  therefore,  suggest  to  except  out  of  the  operation  of 
this  paragraph  8  all  cavalry  troops  and  commands,  and  make  a 
proviso,  that  whenever  cavalry  companies  are  ser\nng  at  posts 
commanded  by  infantry  or  artillery  officers,  that  so  far  as  the 
cavalry  regulations  for  interior  cavalry  administration  and  duties 
are  concerned,  that  the  regimental  commanders  of  cavalry  be 
fully  authorized  to  enforce  regimental  orders  and  discipline. 

Eleventh.  It  is  certain  that  regimental  commanders  of  cavalry 
should  not  be  held  responsible  for  the  discipline  or  efficiency  of 
their  regiments,  if  their  companies,  serving  at  posts  commanded 
by  artillery  or  infantry  officers,  are  placed  beyond  the  enforce- 
ment of  cavalry  rules  for  such  discipline  and  efficiency.  The 
nature,  organization,  and  distinctive  characterization  of  these 
different  arms  of  service  are  broad  in  differences,  and  the  rules 
of  a  post  for  the  enforcement  of  discipline  and  effectiveness  in 
infantry  and  artillery  would  be  wholly  inadequate  as  applied  to 
cavalry. 

Twelfth.  There  is  no  reason  for  the  discrimination  between 
cavalry  and  mounted  artillery,  as  made  in  mixed  commands  on 
page  1V2.  paragraphs  G.  7.  and  10,  and  to  coiTect  it.  strike  out 
paragraph  6,  and  in  paragraph  7,  after  the  words  '"mounted 
artillery."  in  first  line,  add,  'and  cavalry,"'  and  after  the  words 
"soldiers  of  mounted  batteries,"  in  first  line  of  paragraph  10. 
add,  "and  cavalry."  The  service  of  a  cavalry  soldier,  including 
the  care  of  his  additional  equipments,  arms,  and  hard  scouting 
and  escort  duty,  exceeds  in  its  labor  and  fatigue  that  of  a  soldier 
of  mounted  artillery,  in  the  care  of  horses  and  battery. 

ARIICLES   OF   WAR. 

Thirteenth.  Article  YI  of  the  Rules  and  Ai-ticles  of  War.  in 
its  connection  ^^^th  Article  XII.  requires  an  additional  paragraph 
in  Article  LXIV,  which  should  read:  "Whenever  a  general 
court-martial  assembles,  and  before  the  prisoner  is  called  upon 
by  the  judge-advocate  to  plead  as  to  his  guilt  or  innocence  of  the 
charges,  if  the  judge-advocate  finds  in  the  array  of  the  members 
a  sufficient  number  of  officers  senior  in  rank  to  the  prisoner  to 
constitute  a  lawful  court  of  five  or  more  members,  it  shall  be  his 
duty  to  excuse  the  other  members  of  the  array  from  sitting,  and 
thus  avoid  the  influence  of  jiTuiors,  in  trials  where  no  other 
motive  than  to  do  justice  should  bear  in  forming  the  judgment 
of  the  court." 


183 


Article  YI  makes  any  uniuber  of  officers  from  five  to  thirteen  a 
iw  uTcomt  lor  the  trial  of  a  commissioned  officer,  only  reqmr^ 
ii;  the  .^ximum  number  thirteen,  when  that  munher  can  be 
convened  without  manifest  injtiry  to  the  service. 
'TtMe  XII  says  ''no  officer  shall  be  tried  ^^;t  by  a  geiiera 
court-martial,  nor  by  officers  of  an  interior  rank,  ^^^^^^  ^^ 
avoided  without  detriment  to  the  pubhc  service.       The  policy 
Tt   ?iIwof  courts  is  to  move  out  of  the  juror's  mmd  every 
n  ot  ve  tlmt  could  operate  to  the  prejudice  of  the  prisoner  to  be 
^M^  promotion  of  a  junior  ^o^ows  by  dismission^^^^ 
senior  officer,  and  the  benefit  of  such  promotion  coujd  poss  b  y 
xchTate^ie  vote  of  a  junior,  the  law  in  positive  terms  forbids 
;;e  Mai  of  I  senior  b^  a  junior,  -if  it  can  be  avoided  without 

manifest  injury  to  the  service.  ^     ^  , 

When  five  or  more  seniors  constitute  in  part  the  panel  .:^  a 
com-Miartial,  it  is  clear  that  a  trial  can  be  had  by  semors,  and 
1  tie  XII  applving  in  that  case,  the  duty  of  the  judge-advocate 
^  to  excuse  tlLV-ors,  as  otherwise  the  trial  wo^^^^^^^ 

The  object  of  Article  XII  is  to  secure  purity  m  the  admmistia 
tion  of  mm  a.y  justice  in  the  Army,  and  that  object  would  be 
ac°  ompl    hed  wi  h  a  gi-eater  degree  of  certainty  by  the  additional 
n^a  "ilh  I  propose  to  add  in  defining  the  duties  of  the  judge- 
arocate      He  is  the  law  officer  of  the  Government  m  its  mili- 
^:^inistration  of  justice,  and  all  ^^^^^^J^ 
ers  a-ree  that  it  is  his  duty,  before  proceeding  t(.  the  tiial  oi  aii> 
offi  el       to  see  that  the  court  is  legally  constituted.       As  a  riU 
however,  the  judge-advocates  of    military  courts   are    officii  s 
'Xut  erudition  in  law,  or  any  great  experience  even  m  the 
admh     tration  of  military  justice.     It  is  therefore  of  primary 
tPLe  to  fix  the  legal  constitution  of  the  conr^-J- P^^^  • 
that  the  most  inexperienced  judge-advocates  can  not  mistake  the 
carM  prm  its  lawful    organization,  before  puttnig 

mmtary  reputation  or  military  officers  "in  jeopardy  of  life  or 

^"nilitarv  honor  is  of  peculiar  characterization,  and  if  oncedanv 
ag^  tilther  by  mistake  or  otherwise,  it  is  seldom  so  retrieved 
as  to  x^store  to  full  usefulness  the  officer  on  whose  character  a 

"^?t^nd::::;r::^  military  courts  should,  therefore,  be  fre^ 
trL  ail  suspicion  of  inducement  or  motive  to  prevent  v^. 
to  disguise  wrong,  to  impute  innoc-ence,  or  to  convict  ot  dime. 


184 

Fourteentli.  In  Article  XVI,  I  would  suggest  substituting  the 
word  "shall"  for  "may,"  in  line  6,  that  reads  "and  a  court  of 
inquiry  may  be  ordered  by  any  general, "  etc. ,  so  that  it  will 
read  "shall  be  ordered,"  etc.,  because  in  my  judgment  it  is  the 
absolute  right  of  an  officer,  when  he  thinks  an  imputation  rests 
upon  him,  to  accpiit  himself  of  it  by  such  a  court.  When  an 
officer's  reputation  is  at  all  in  question,  his  usefulness  is  at  an 
end  unless  he  can  show  that  the  imputation  is  gi'oundless,  and 
place  himself  above  suspicion.  It  may  often  happen  that  the 
imputation  comes  directly  or  indirectly  from  the  general  or  com- 
manding pfficer  on  whom  the  demand  is  made  for  the  court  of 
inquiry  by  the  injured  officer.  It  should  not  therefore  be  left  at 
the  discretion  of  such  general  or  commanding  officer  to  refuse 
the  application  of  the  officers  they  may  have  wronged,  as  it 
would  now  seem  to  be  by  using  the  language  ' '  may  be  ordered, " 
etc.,  as  such  language  may  be  construed  to  leave  the  ordering 
of  the  court  discretionary  in  their  judgment.  Military  reputa- 
tion can  not  rest  under  equivocation  or  in  doubt ;  it  must  be 
unclouded,  and  courts  of  inquiry  should  never  be  refused,  when 
demanded  by  any  officer  whose  military  character  is  under  asper- 
sion going  to  the  integrity  of  his  personal  or  official  manhood. 


APPENDIX   H. 


LETTER   OF   LIEUTENANT    GENERAL    SCHOFIELD   IN 
REGARD  TO  PROPOSED  REGULATIONS  OF  1870. 

St.  Augustine,  Fla.,  January  lu,  1897. 

*  *  *  In  reply  to  your  inquiry  of  January  8tli,  my  recollec- 
tion is  that  Col.  Robt.  Scott  and  Colonel  Tourtellotte  went  on  and 
completed  tlie  revision  of  regulations  as  I  had  mapped  them  out 
in  the  ' '  first  articles. "  I  know  that  great  progress  had  been 
made  in  that  work  when  I  ceased  to  supervise  it,  or  give  any  fur- 
ther directions.  In  fact,  the  work  after  that  was  little  more  than 
clerical,  the  theory  of  it  being  that  the  drafts  of  staff  regulations 
and  the  old  general  regulations  should  not  be  altered  except  so 
far  as  necessary  to  make  them  conform  to  the  principles  laid 
down  in  the  first  articles.  I  recollect  that  General  Sherman 
wanted  me  to  go  on  and  complete  the  staff  regiilations  without 
consulting  the  chiefs  of  staff  departments,  but  I  was  not  \villing 
to  do  that,  and  all  th^  chiefs,  as  I  recollect,  sent  me  their  projects 
in  detail.  Of  course  these  required  much  attention,  and  Colonel 
Scott  was  engaged  in  that  work  when  my  direction  of  it  ceased. 
To  this  there  was  one,  and  as  I  recollect  only  one,  exception. 
General  Meig-s,  Quartermaster  General,  cordially  adopted  the 
theory  laid  down  in  one  of  the  first  articles  attempting  to  define 
the  relations  between  the  Secretary  of  War,  the  General  of  the 
Ai'my,  and  the  chiefs  of  staff,  which,  he  said,  in  substance,  was 
the  best  definition  he  had  ever  seen  of  that  relation. 

It  may  be  of  interest  in  your  history  to  note  that  the  relation 
there  attempted  to  be  defined  was  not  any  invention  of  mine,  but 
was  what  I  understood  to  have  been  General  Grant's  idea  when 
he  was  in  command  of  the  Army,  and  that  of  General  Sherman 
when  he  ordered  me  to  revise  the  regulations.  I  was  simply 
called  upon  to  act  as  a  sort  of  expert,  to  put  in  form  those  views 
of  my  superiors.  I  was  not  at  liberty  to  embody  in  that  revision 
any  independent  views  of  my  own,  even  if  I  had  any  at  that 

(185) 


186 

time.  But  my  recollection  is  that  I  did  not  have  at  that  time, 
any  thought  on  the  subject  but  to  carry  out  as  well  I  could  the 
wiil  of  my  superiors,  the  General  in  Chief  and  the  President, 
who  I  presumed  were  in  perfect  accord,  their  previous  differences 
having  then  resulted  in  the  resignation  of  Secretary  Belknap, 
and  the  restoration  of  General  Sherman  to  aetnal  command. 

My  own  independent  and  matured  views  are  to  be  found  in 
connnunications  addressed  to  the  President  when  I  was  in  com- 
mand of  the  Army,  now,  doubtless,  on  the  files  of  the  War 
Department,  either  public  or  confidential. 

I  presume  all  the  work  done  by  Colonel  Scott  and  Colonel 
Tourtellotte  on  that  revision  is  somewhere  in  the  War  Depart- 
ment or  Army  Headquarters. 

Yours,  verv  truly, 

J.    M.    SCHOFIELD. 


APPENDIX   I. 


REMARKS  OF  SECRETARY  OF  WAR  McCRARY,  IN  HIS 
ANNUAL  REPORT  FOR  1S77. 

ARMY   REGULATIONS. 

The  latest  revision  of  the  regulations  for  the  government  of 
the  Army  was  made  in  1861,  to  which  some  additions  were  made 
in  1868.  The  regulations  then  adopted  were  i>ublished  in  1863, 
bnt  are  now  out  of  print,  and  besides  have  been  supplemented 
by  numerous  general  and  special  orders  and  modified  by  various 
legislative  acts,  so  that  it  may  be  said  that  there  is  great  need  of 
a  careful  revision  of  the  whole  subject.  The  attempts  heretofore 
made  to  supply  the  need  which  is  generally  felt  in  the  Army  of 
a  new  and  complete  code  of  regulations  have  not  resulted  in 
siiccess,  although  much  work  has  been  done  which  may  l)e 
utilized  hereafter. 

By  an  act  approved  July  28,  1866,  the  Secretary  of  War  was 
directed  to  have  prepared  and  to  report  to  Congress  at  the  next 
session  "a  code  of  regulations  for  the  government  of  the  Army 
and  of  the  militia  in  actual  service,  which  shall  embrace  all 
necessary  orders  and  forms  of  a  general  character  for  the  per- 
formance of  all  duties  incumbent  on  officers  and  men  in  the 
military  service,  including  rules  for  the  government  of  courts- 
martial  ;  the  existing  regulations  to  remain  in  force  until  Con- 
gress shall  have  acted  on  said  report. "  In  compliance  with  the 
terms  of  this  act,  a  revision  of  the  Rules  and  Articles  of  War 
was  made  and  submitted  to  Congress,  but  no  action  was  taken 
thereon. 

By  an  act  approved  July  15,  1870,  it  was  again  provided  that 
a  system  of  general  regulati(ms  for  the  Army  therein  authorized 
should  be  reported  to  Congress  at  the  next  session  and  approved 
by  that  body. 

(187) 


188 

The  act  of  March  1,  1875,  vol.  IS,  Statutes  at  Large,  page  337, 
repealed  so  much  of  said  act  of  July  15,  1870,  as  required  regu- 
lations to  be  submitted  to  Congress,  and  authorized  the  Presi- 
dent "to  make  and  piiblish  regulations  for  the  government  of 
the  Army  in  accordance  with  existing  laws." 

By  an  act  approved  July  24,  1876  (19  Stat.,  p.  101),  the  whole 
subject-matter  of  reform  and  reorganization  of  the  Army  of  the 
United  States  was  referred  to  a  commission,  to  be  composed  of 
two  members  of  the  Senate,  two  members  of  the  House  of  Rep- 
resentatives, two  oflacers  of  the  Army  from  the  line,  one  officer 
of  the  Army  from  the  staff,  and  the  Secretary  of  War.  This 
commission  was  to  report  to  Congress  at  its  next  session.  By  a 
joint  resolution  approved  August  15,  1876  (19  Stat.,  p.  216),  the 
President  was  requested  to  postpone  all  action  in  connection 
with  the  publication  of  regulations  until  after  the  report  of  the 
commission  above  mentioned  should  be  received  and  acted  on  by 
Congress  at  its  next  session.  The  commission,  however,  ad- 
journed, after  collecting  a  great  mass  of  material,  without 
accomplishing  its  object,  not  being  able  to  complete  its  work 
before  the  Congress  to  which  it  was  required  to  report  had  ex- 
pired. 

Thus  it  will  be  seen  that  the  powers  of  the  commission  have 
been  exhausted,  while  at  the  same  time  the  law  is  left  in  such 
a  state  as  to  render  it  extremely  doubtful  as  to  the  power  of  the 
Executive  to  issue  and  publish  regulations.     It  will  be  for  Con- 
gress to  determine  whether  it  is  w^se  to  require  that  a  code  of 
general  regulations  shall  be  subjected  to  the  formal  action  of 
Congress,  thus  giving  them  a  fixed  character,  unalterable  except 
by  the  same  formal  action.     In  my  judgment,  this  would  not  be 
wise.     All  matter  in  the  regulations  which  should  properly  be 
bound  by  force  of  law  is  actually  made  in  exact  conformity  with 
military  acts  of  Congress,  and  is  always  in  the  precise  language 
of  the  statutes ;  but  there  are  very  many  matters  of  detail  which 
depend  upon  the  daily  changing  necessities  of  the  service,  and 
are  regulated  by  the  exiierience  and  intelligence  of  practical  men 
in  the  Army,  which  should  be  left  for  modification,  as  often  as 
circumstances  demand,  to  the  discretion  of  the  Executive.     It  is 
a  principle,  well  understood  and  invariably  acted  upon,  that 
whenever  a  regulation  comes  in  conflict  with  a  law  of  Congress, 
it  is  null  and  void.     The  law  is  thus,  as  it  were,  a  constitution, 
and  regulations  are  simply  the  by-laws  based  thereon. 


IS'.) 

The  authority  to  make  alterations  in  the  regulations  was 
vested  by  act  of  April  24,  1816,  in  the  Secretary  of  War,  with 
the  approval  of  the  President,  and  has  been  ever  since  so  exer- 
c-ised,  with  this  exception,  that  by  an  act  of  March  2,  1821,  a 
system  prepared  by  General  Scott,  under  an  act  of  March  3,  1813, 
was  "approved  and  adopted."  But  this  act  of  March  2,  1821, 
was  repealed,  in  terms,  by  an  act  of  May  7,  1822,  leaving  the  act 
of  April  24,  1816,  still  in  operation.  The  Army  regulations  are 
always  public  and  easy  of  reference,  and  Congress  can  readily,  at 
any  time,  correct  by  legislation  any  objectionable  feature  which 
may  appear  in  them. 


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